Court File and Parties
COURT FILE NO.: 14-90 DATE: 20170524
IMPORTANT: CONTENTS CANNOT BE PUBLISHED OR BROADCASTED PURSUANT TO AN ORDER UNDER SECTION 486 OF THE CRIMINAL CODE OF CANADA BY HIS WORSHIP JUSTICE OF THE PEACE LEGAULT AND HIS HONOUR JUSTICE RENAUD. Ontario Court of Justice dated: December 19, 2013 and September 26, 2014
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – J-C.M. Accused
Counsel: Isabel Blanchard, counsel for the Crown D. Nugent, counsel for the Accused
HEARD: April 3, 2017
Reasons for Sentence
Lacelle, J.
Introduction
[1] The accused, J-C. M., is before me for sentencing having been found guilty following a trial of the offences of indecent assault and gross indecency.
[2] The offences occurred in 1971. The victim is the accused’s younger brother.
[3] The accused is now 69 years old. He comes before the court as a first offender.
[4] The issue I must decide is the appropriate sentence, having regard to the circumstances of the offence and the accused, and all the relevant principles of sentencing.
The circumstances of the offences
[5] The offences occurred when the victim was 14-15 years old, while the accused was 23. Over a 3-4 month period during the spring of 1971, the accused went to the victim’s bedroom during the night, woke him up, and took him back to the accused’s bedroom in the family home. At the time, the accused had been working for a number of years and he had returned to the family home following a period when he had worked in another province.
[6] The victim was required to perform oral sex on the accused, and the accused also performed oral sex on him. The accused rubbed his penis between the victim’s buttocks, an act which hurt the victim, and the victim performed this act on the accused. The sexual abuse came to an end following the complainant’s disclosure to his mother, and the accused’s meeting with one of his uncles.
[7] While the precise number of times these sexual offences occurred was not clear, I found that the conduct was repeated.
The circumstances of the accused
[8] In addition to the information about the accused which was presented during the course of the trial, the court has the benefit of a Pre-Sentence Report and a sexual behaviours assessment of the accused. The author of the PSR found that the accused was a suitable candidate for a community disposition. The author of the sexual behaviours assessment concluded the accused was a low-risk to reoffend.
[9] In addition to these opinions, the reports provide the court with additional information about the accused. The accused has limited education. He had problems reading and writing, and he remains functionally illiterate. He describes himself as having been “slow” and he repeatedly failed grades at school. He was assessed as having a learning disorder by the author of the sexual behaviours assessment.
[10] The accused left school in the sixth grade, when he was sixteen, and sought employment. He worked consistently since that time, until he suffered a back injury, which still troubles him. He suffers from degenerating discs in his back, and uses medication as a result. He also sees a chiropractor. He currently supports himself with his government pensions.
[11] The PSR confirms the accused is a father and grand-father. He also has step-children. Many of these individuals have filed letters of support for the accused. He is described in the PSR by his daughter and step-son as a great father and loving man, who made the best of his circumstances, working hard to provide for his family despite his inability to read or write. He has raised his children to be responsible, self-sufficient adults.
[12] The accused is now in a relationship with a woman who is his common-law spouse. It is a supportive relationship. The accused’s spouse described the accused as loving, caring, respectful, and always willing to help others.
[13] The accused himself has a history of being victimized sexually. He reports a history of sexual touching by his cousins. In the PSR, he is noted to rationalize or minimize his behaviour given this experience.
[14] While the PSR is largely positive, a different view of the accused emerged in the comments made by the victim, and the accused’s younger brother F.M. F.M. also noted that the offences have caused a rift in their family, because it is the victim who stays away at family functions, and not the accused.
[15] As far as mental health is concerned, the accused was described as not presenting any mental health issues in the sexual behaviours assessment. There are also no substance abuse issues in his history. He has no sexual disorders. Actuarial testing resulted in an above average score on the Paulhus Deception Scale, which indicates that compared to the general population, the accused has a tendency to present himself in an overly-positive light and tends to minimize his own personal shortcomings. He scored in the “low” risk category on the Static-2002R. Compared to other adult males, his score in the 4th percentile means that his risk of offending in the next 5 years is 1%. Given that he has not re-offended in almost 50 years, the author of the assessment concluded that the accused’s true risk of re-offence is even lower. From a psychiatric perspective, the accused does not require psychiatric treatment. According to the author of the sexual behaviours assessment, the likelihood of the accused receiving treatment if incarcerated will be impacted by the assessment of his very low risk to reoffend, due to a belief that “low risk offenders become high risk if they have contact within correctional treatment facilities”. Nevertheless, the accused has indicated he is willing to attend any counselling the court might order.
The principles of sentencing
[16] The Criminal Code sets out a number of principles of sentencing which must be considered in determining a fit sentence. The fundamental purpose of sentencing is confirmed in s. 718. That section provides that the sanction imposed by the court should 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 acknowledgment of the harm done to victims and to the community.
[17] In sentencing an offender, s. 718.1 provides that the court must adhere to the fundamental principle of ensuring that the sentence imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 of the Code identifies additional principles of sentencing, including that the court should increase or decrease the sentence to account for any relevant aggravating or mitigating factors.
[18] These principles govern the court’s analysis.
Analysis
[19] The accused seeks a conditional sentence of two years less a day, with strict terms imposing house arrest. His counsel argues that a conditional sentence is sufficient to address all the sentencing objectives in this case, particularly given the positive and pro-social life the accused has led since the offences. Counsel also relies on other circumstances, including the accused’s health difficulties, in arguing that this an exceptional case warranting a conditional sentence. Counsel argues the accused has expressed remorse. He also argues that the suggestion in the risk assessment that the accused is still in denial about the offences reflects the fact that he is a slow learner. He highlights the low risk posed by the accused at the time, and the positive comments about the accused in letters of support he has filed. He argues that if the court were to impose a custodial sentence, this would impact upon the accused’s spouse given her financial means and her disability. He argues that the accused is slow intellectually, and that he had the mentality of a younger person at the time of the offence because of his cognitive delay.
[20] The Crown seeks a sentence of 3-5 years in the penitentiary, and submits that the sentence should be at the higher end of that range. She opposes a conditional sentence on the basis that it would not satisfy the principles of denunciation and deterrence. In part this is because a conditional sentence, even with house arrest terms, would not significantly change the accused’s routine. She urges that imposing a lenient sentence because of the passage of time could be seen by the community as judicial condonation of the conduct. She argues that any expression of remorse by the accused is severely tempered by his comment that he is disappointed that the victim came forward to police with his allegation, and his lack of empathy for the victim.
[21] A number of considerations impact the analysis in this case, and I will address them in turn.
The aggravating and mitigating factors
The aggravating factors
[22] In my reasons for judgment, I found that the complainant was a 14-15 year old teen-ager and still a child when the acts were committed. The accused, who would have been 23 years old, took advantage of the complainant’s youth and immaturity, as well as his relationship as his older brother, when he initiated this conduct. At the time of the offences, the accused had left the house and had worked various jobs, including work outside of the province. He had been engaged to be married. In the absence of the father in the family’s life, he was involved in reinforcing the authority of his mother with his younger siblings. He was an adult in every sense of the word, and in a position of trust, when he took advantage of his much younger brother.
[23] With regard to the defence argument that the accused was cognitively delayed to the point where he had the mentality of a younger person when he committed the offences, there is insufficient evidence to support that conclusion. While I accept that the accused had difficulties learning, everything else about his life at the time of the offences and his life since confirms that he has functioned in the community as an adult who was capable of understanding right from wrong. I am not satisfied that his moral blameworthiness for these offences is diminished by any learning disability or other cognitive issue or by his level of maturity at the time of the offences.
[24] It is also aggravating that the victim was a child when these events occurred. Both the breach of trust and the victim’s age are specifically referenced as aggravating factors in the Criminal Code. As a child, the victim should have felt safe in his own home, in his own bed. Instead, he was abused by an older member of his own family.
[25] The significant impact of these offences on the victim is also an aggravating factor. The victim read his Victim Impact Statement to the court. It makes plain that the offences have had a life-long and life altering impact upon him. He is now 59 years old, and he says that the abuse has destroyed his life. He has suffered from depression, anxiety, insomnia, and PTSD, to the point where he has contemplated ending his life. He continues to experience flashbacks. His shame and confusion about what happened took time for him to overcome. In the meantime, his life as an adolescent, a husband, and a father were all affected. His feelings of safety in his community were impacted, and he has avoided various situations for fear of encountering the accused. He has missed out on events with his family, and his relationship with his extended family has been deeply altered by the abuse because he has been told he should just get over what happened. He has tried all manner of ways to heal from this, including counselling, and he continues to struggle.
[26] The victim’s daughter also filed a Victim Impact Statement. Her statement makes clear that the impact of the abuse in this case has been inter-generational. Her father was not present for her as a child in the way he might otherwise have been. Her relationship with her extended family has also suffered. As she puts it, the offences have ruined their family dynamic. Witnessing her father’s pain and supporting him through the trial process has caused her to experience her own mental health difficulties.
The mitigating factors
[27] There are a number of mitigating factors in this case. The accused has no prior convictions. He has led a pro-social life in the more than forty years since the offences. He has a lengthy history of employment, despite his limited education and illiteracy. He now contributes to his community by his volunteer work in his housing co-op. He has substantial community and family support, and by all accounts he has been a good father, grandfather, and spouse. He is willing to attend treatment. He is very low-risk to re-offend. He has some health issues for which he receives treatment. He is an offender who has excellent rehabilitative prospects, if he is not rehabilitated already, and he is unlikely to come before the court again. I consider all of these factors in determining the appropriate sentence in this case.
[28] The issue of the accused’s remorse, which might function as a mitigating factor, is not straightforward in this case. The author of the PSR was of the view that the accused appeared to lack empathy for the victim, since he stated that he was “disappointed” that his brother reported the abuse. At the same time, the accused told the author of the PSR that he was sorry, as he did in his letter to the victim years ago. However, in her letter in support filed on the sentencing hearing, the accused’s spouse indicates that the accused told her that sending the letter was a “big mistake”, and that it was written in order to apologize “in order for this matter to be closed as promised by his brother”.
[29] While the accused admitted to the acts he performed with the victim during the course of the trial, he maintained the victim had consented to them. This view was also communicated during the sexual behaviours assessment, where the accused maintained that no offence had been committed because the sexual contact was consensual.
[30] The evidence of the accused’s remorse is thus mixed. While I accept that the accused has said he is sorry that these events occurred, I find that the accused does not have any genuine insight into the impact of these events upon the victim. So while I accord some weight to the expressions of remorse the accused has made, this mitigating factor in the sentencing analysis does not have the same force as in a case where there is evidence the accused takes full responsibility for the harm he has caused.
The age of the offences and the passage of time
[31] I have considered the historic nature of the offences here in accordance with the principles previously elaborated in the case law. That is, the passage of time or the age of the offence is irrelevant to sentencing in terms of the gravity of the offence. It does not diminish the need for a denunciatory sentence.
[32] The passage of time is relevant to specific deterrence and the rehabilitation of the offender. The time between the offences and the court proceedings may show that the accused poses little risk of re-offending and impact on the assessment of what is required now to protect the safety of the community: see for instance R. v. B. (R.) at para. 58 citing R. v. M. (V.); R. v. J.R. at para. 1; R. v. Spence, 1992 ABCA 352, [1992] A.J. No. 1129 at p. 4 (Q.L.) (Alta.C.A.). That has been the case here. The passage of time and the absence of any offending behaviour by the accused demonstrates that he does not require specific deterrence. The passage of time also demonstrates that whatever rehabilitation may have been appropriate at the time of these offences is no longer necessary.
The availability and fitness of a conditional sentence
[33] A conditional sentence is available in this case because of the historic nature of the offences and the accused’s s. 11(i) Charter right to the benefit of any lesser punishment since the time of the commission of the offence. At the time of the offences, the sentencing regime did not provide for any minimum sentences. Given the maximum sentence of 5 years for each offence, the accused is eligible for a conditional sentence.
[34] In considering whether a conditional sentence is fit in this case, I consider that the Court of Appeal for Ontario has repeatedly reaffirmed its direction that a conditional sentence should rarely be imposed in cases involving the sexual touching of children by adults, particularly where the sexual violation is of a vulnerable victim by a person in a position of trust: R. v. D.R., [2003] O.J. No. 561 at para. 8; R. v. Cromien, [2002] O.J. No. 354 at para. 7. This is in keeping with its earlier direction that even if certain pre-conditions for a conditional sentence are satisfied, this does not compel the imposition of a conditional sentence: R. v. G.O., [1997] O.J. No. 1911 at paras. 6 and 14.
[35] I am not satisfied that this is one of those rare cases that warrant a conditional sentence. While I find that the accused is not a risk to the community and a conditional sentence would not endanger the safety of the community, I am not satisfied that a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 and 718.2 of the Criminal Code.
[36] I arrive at this conclusion after considering a number of issues. I consider that these offences have caused significant harm to the victim, who continues to suffer from their effects even decades later. These offences have been life-altering for him and his family. As noted in R. v. Woodward, 2011 ONCA 610 at para. 76,
[W]hen trial judges are sentencing adult sexual predators who have exploited innocent children, the focus of the sentencing hearing should be on the harm to the child by the offender’s conduct and the life-altering consequences that can and often do flow from it. While the effects of a conviction on the offender and the offender’s prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence and the need to separate sexual predators from society for society’s well-being and the well-being of our children must take precedence.
[37] I also consider the seriousness of the offences and the circumstances in which they were committed. The offences involved invasive sexual acts on a child, and the abuse of a position of trust. While the precise number of occasions the offences occurred is not possible to determine, I am satisfied the conduct was repeated. In other words, it was not an isolated event.
[38] The nature and seriousness of these offences require the court to give primacy to the principles of denunciation and deterrence, and for the court to make clear with its sentence that sexual offending against children, particularly by a person in a position of trust, is abhorrent to this community and will result in significant sanction: s.718.01 of the Criminal Code, R. v. D. (D.), 58 O.R. (3d) 788 (C.A.); R. v. Woodward, 2011 ONCA 610; R. v. D.M., 2012 ONCA 520, [2012] O.J. No. 3616 (C.A.). While in some cases a conditional sentence might adequately send that message, I am not satisfied that such a sentence in this case would do so.
[39] In arriving at this conclusion, I am mindful that the Supreme Court of Canada has confirmed that a conditional sentence may provide significant denunciation and deterrence, particularly when onerous conditions are imposed: R. v. Proulx, 2000 SCC 5 at paras. 102 and 107. Further, I have considered that in one of the companion cases to Proulx, R. v. W. (L.F.), 2000 SCC 6, which was also a case of historic sexual abuse of a child by a family member, Lamer C.J.C., writing for four members of the court, upheld the trial judge’s conditional sentence order (even while he indicated at para. 25 that he might have imposed a sentence of incarceration).
[40] I have also considered that a conditional sentence has been imposed by judges in other cases where similar sexual acts were committed by offenders who were in a trust position towards their victim. This result has been achieved or upheld in some instances in the Court of Appeal (see R. v. Esmonde, [2002] O.J. No. 2544). I have reviewed the cases submitted by the defence carefully. For the most part, the cases resulting in a conditional sentence involved compelling mitigating factors that are not present in this case, such as a guilty plea by the offender. In at least one case, R. v. Erlich, 2015 ONCJ 151, in addition to a guilty plea by the accused, there was evidence that the court proceedings had resulted in widespread knowledge and public condemnation of the accused’s crimes, which lead the trial judge to conclude that denunciation and deterrence were “loudly and publicly present” in that case. There is no such evidence here.
[41] As regards the submission that the accused’s health and the circumstances of the accused’s spouse support this sentencing order, I do not view those circumstances as sufficiently compelling to favour the imposition of a conditional sentence. It is not unusual for an offender to come before the court with health concerns. There is no evidence in this case that the accused’s health concerns will not be addressed by custodial authorities if he is incarcerated.
[42] With respect to the care the accused provides to his spouse, the materials filed to demonstrate the extent of the disability of the accused’s spouse also show that she has received significant support from her daughter and a friend in the past, and that she lived with her disability without the assistance of the accused prior to 2013. I expect she will be supported by her family and friends if the accused is no longer able to perform that function. In any case, as stated in R. v. A.G. at paras. 43 and 77, where a similar conclusion was reached about an offender who cared for his ill ninety-year old mother, the needs of a person cared for by the accused are not a reason why the accused “should not serve the sentence which his crimes deserve”.
Conclusion
[43] The range for sentences for similar conduct committed by similarly placed offenders is set out in the authorities provided by counsel. No case is exactly like this one, and I have considered cases that are most similar to this one in deciding on the length of the sentence to be imposed here: see for instance R. v. Vincent, 2014 ONSC 1068, R. v. B. (R.) and R. v. W. (L.F.), 2000 SCC 6. I have also considered the range of sentence identified in D.D. for adult offenders who, in a position of trust, sexually abuse children on a regular and persistent basis over substantial periods of time. As I have said, it is not clear how often the offences occurred in this case. The maximum period of time over which the offences might have occurred is 3-4 months. I do not view the facts here as requiring the imposition of a mid to upper single digit penitentiary term.
[44] In the final analysis, I have determined that a sentence of 2 years less a day in custody is appropriate. While I have considered a probationary term, given the conclusions in the sexual behaviours assessment that the accused does not need treatment, and given the time he has spent on bail prior to trial without incident, I am not convinced that a probation order would have any rehabilitative benefit or that it would further protect the public.
[45] The sentence will be as follows: on count one, the accused shall be sentenced to a period of 2 years less a day. On count 2 the accused shall be sentenced to 2 years less a day concurrent to count 1.
[46] There will be a s. 109 order for 10 years. There will be a SOIRA order for life. There will also be an order requiring the accused to provide a sample of his DNA to the authorities.
[47] With respect to the Crown’s request for an order under s. 161, I consider that the accused has been assessed as a very low risk to re-offend, and that he has not offended in a number of decades since the offences. I also consider that he is now a grandfather. As I have indicated, I do not find that the accused poses a danger to the community. In the circumstances, I will not make an order under s. 161.