Court File and Parties

COURT FILE NO.: 7830/18 DATE: 2019-09-11 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Robert Skeggs/David Didiodato, Counsel for the Crown

- and -

B.S. Bruce Willson, Counsel for the Accused Accused

HEARD: July 15, 2019

GAREAU J.

REASONS FOR SENTENCE

[1] After a trial, B.S. was convicted of the offence of indecent assault, contrary to section 149(1) of the Criminal Code of Canada. This is a historical case. The events occurred almost 40 years ago. The offender was scheduled to be sentenced on July 26, 2019, but sentencing did not take place due to the hospitalization of B.S.. The sentencing was adjourned to September 11, 2019.

[2] The finding of facts made by this court which support the conviction are set out in paragraph 39 of the court’s written reasons released on April 17, 2019. The offender touched the breasts and vagina of the complainant over her clothing in a closet area in the S. home. On a later occasion the accused touched the breasts and vagina area of the complainant both over her clothes and under her clothes and attempted to have the complainant perform oral sex by inserting his erect penis into the complainant’s mouth while in the sunporch of the S. home.

[3] With respect to the sentence to be imposed on the offender, the Crown is asking for a custodial sentence in the range of 12 to 18 months followed by a period of probation for three years. The offender, through his counsel, is asking that the court impose a conditional sentence to be served by the offender in the community.

[4] In determining what is a fit and just sentence the court is guided by section 718 of the Criminal Code of Canada which sets out a list of principles and objectives that the court must consider when determining the appropriate sentence to be imposed for B.S. Section 718 reads as follows:

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community.

[5] As indicated in section 718.1 of the Criminal Code, “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”.

[6] B.S. is 56 years of age. He comes before the court with an unrelated record for break, enter and theft in 1980, assault in 1995, driving while impaired in 1996, and assault in 2005. B.S. has never before received a custodial sentence. Any custodial sentence imposed on B.S. will be his first and undoubtedly have an impact on him. These are mitigating factors to be considered by the court.

[7] Another mitigating factor is B.S.’s pre-sentence report (Exhibit S-2) which can be described as positive. B.S. is gainfully employed and by all accounts contributes positively to his community and society. On page six of the pre-sentence report it is noted that “The subject made remarkable strides in becoming a mentor and father to his children”. On page seven of the pre-sentence report the author observes that “The subject presents with minimal indications of future sexual re-offending”.

[8] The offender has struggled with depression and substance abuse and to his credit he has in the past sought treatment and assistance to deal with the challenges in his life. This is certainly a positive factor to be weighed in favour of the offender.

[9] Against these mitigating factors are aggravating factors which must be considered by the court. There was an escalation in the behaviour of the offender as it involved his interactions with the complainant. Touching private parts over clothing escalated to touching private parts under clothing and attempting to have the complainant perform fellatio on him. There is also the large age disparity between the offender and the victim. The offender was between the ages of 18 to 20. The victim was between the ages of 10 to 13. Although this is not a case of breach of trust, it is a case where the offender was older and more worldly and took advantage of someone who was vulnerable due to their age. This, in my view, is an aggravating factor which must be considered by the court on sentence.

[10] There is also the impact that the actions of the offender have had upon the victim. At the sentencing hearing the victim read her victim impact statement (Exhibit S-1) to the court. At times the victim was emotional and moved to tears when reading her statement. The victim describes feeling devastated and carrying shame throughout her life. As she put it, “The immense confusion about sex, sexuality, love, shame and my identity continue to shadow me to this day”. The victim goes on to state, “I’ve struggled all my life developing meaningful relationships. These struggles impact all areas of my life and family. I struggle with making emotional connections in all areas of my life and have for most of my life. I question my emotional connections with my children, my family, my partner and with people I meet in personal and professional situations.”

[11] In her victim impact statement, R.A. describes battling depression and anxiety, which has affected her work opportunities and her family life. The victim describes how she has tried to numb the pain, indicating “I used drugs for many years to numb the memories and pain, but there was never enough. Today I continue to struggle with the desire to get high to shut down my feelings and to be numb. I’m afraid if I go back to that way of coping it will surely be the end of my life.”

[12] On page three of her victim impact statement, R.A. states that, “The pain I feel today is not physical, it’s emotional and spiritual. In my past I have attempted suicide on two occasions and continue to struggle with these thoughts. I have been to psychological counselling and traditional healing throughout my life and have come to realize I need further treatment to process this part of my healing journey.”

[13] On the final page of her victim impact statement, R.A. makes the following observations:

It is important to me that you all know that the life sentence sits with me, whether I can handle it or not. It’s not something that goes away when the abuser is punished. I’m not here for revenge. I’m here to heal, to regain my desire to live and be happy.

To let you know that sexual abuse profoundly impacts every area of your life and there is no end. You can seek all the treatment and healing in the world but it will never change the events of abuse that transpired your life and you just have to learn to live with it...today I choose life.

[14] Undoubtedly, the actions of the offender have had a profound negative effect on the life of the victim, an effect that lasts today, some 40 years later. The victim impact statement of R.A. is a jarring reminder to this court that B.S. will receive and serve any sentence imposed on him, but the victim endures a life sentence of having to cope and find a way to live with the reality that she has been sexually abused.

[15] In the sentencing submissions much was made about the lack of remorse by B.S. It is clear that he has no remorse. As indicated on page six of the pre-sentence report, “The client presented as co-operative and forthcoming with personal information, however, the client continues to maintain his innocence which outlines no remorse and accountability for the charges before the court.” The Crown submits that this lack of remorse by the offender is an aggravating factor that the court should consider on sentence. Counsel for B.S. submits that remorse can be considered as a mitigating factor by the court, but that lack of remorse is not an aggravating factor that should be considered. I agree with the latter position and treat the issue of remorse, in the case at bar, as a neutral factor not having a bearing on the sentence to be imposed on B.S.

[16] The nature of the offence itself, a sexual assault on the complainant, is to be considered by the court on the sentence to be imposed on B.S. The jurisprudence is replete with comments establishing the principles of denunciation, general and specific deterrence as the paramount factors for the court to consider in sentencing sexual offenders. This court has paid careful attention to the comments of Moldaver J.A. in R. v. Woodward, 2011 ONCA 610 at paragraph 72 as follows:

The case of D. (D.), it will be recalled, involved an adult predator in a position of trust who sexually abused a number of young boys on a regular basis over a lengthy period of time. The court in that case considered the appropriate range of sentences for offenders who engage in such conduct. In doing so, the court discussed the plight of children in general and the principles and objects of sentencing that must take precedence when adult predators choose to exploit innocent young children. The relevant considerations and principles from D. (D.), at paras. 34-38, are summarized below:

(1) Our children are our most valued and our most vulnerable assets. (2) We as a society owe it to our children to protect them from the harm caused by sexual predators. (3) Throughout their formative years, children are very susceptible to being taken advantage of by adult sexual offenders and they make easy prey for such predators. (4) Adult sexual predators recognize that children are particularly vulnerable and they exploit this weakness to achieve their selfish ends, heedless of the dire consequences that can and often do follow. (5) Three such consequences are now well-recognized: (i) children often suffer immediate physical and psychological harm; (ii) children who have been sexually abused may never be able, as an adult, to form a loving, caring relationship with another adult; (iii) and children who have been sexually abused are prone to become abusers themselves when they reach adulthood. (6) Absent exceptional circumstances, in the case of adult predators, the objectives of sentencing commonly referred to as denunciation, general and specific deterrence and the need to separate offenders from society must take precedence over the other recognized objectives of sentencing.

[17] As noted in paragraph 61 in R. v. Stuckless, 2019 ONCA 504, “It was incumbent on the sentencing judge to impose a sentence with regard to the jurisprudence and understanding of sexual offending as it exists today. Previous sentencing decisions are historical portraits, not straightjackets.”

[18] Defence counsel points out to the court that cases such as R. v. D.(D.) and R. v. Stuckless are cases involving “sexual predators” whereas B.S. does not fit into this category. My view is that these cases establish the general principle that in cases of sexual offences against children denunciation and deterrence are the primary objectives of sentencing.

[19] The fundamental duty of the court is to impose a sentence that is just and fit for the offender and for the offence. As I have observed numerous times in previous judgments the sentencing of an offender is not a science but rather an art. By its very nature it is an individualized process to find the appropriate sentence for the offence to reflect the moral culpability of the offender.

[20] B.S. seeks a conditional sentence. Section 742.1 of the Criminal Code allows the court to impose a conditional sentence of imprisonment where the offence is not punishable by a minimum term of imprisonment and the court: (a) imposes a sentence of imprisonment of less than 2 years; and (b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the principles of sentencing as set out in sections 718 to 718.2 of the Criminal Code of Canada.

[21] B.S. is eligible for a conditional sentence. In R. v. C.(A.), 2018 ONCA 608, the Ontario Court of Appeal upheld a conditional sentence of two years less one day where the offender touched the complainant under her shirt, attempted to kiss her and placed his penis near the complainant’s vagina. The mitigating and aggravating circumstances in R. v. C.(A.) are strikingly similar to the case at bar. The terms of the conditional sentence imposed in R. v. C.(A.) provided for house arrest and conditions which prohibited contact by the offender with the complainant. The Ontario Court of Appeal held that this conditional sentence, in the circumstances of that case, reflected no error in principle.

[22] The imposition of conditional sentences was considered by the Supreme Court of Canada in R. v. Proulx, [2002] 1 S.C.R. 61. Proulx clearly establishes that it is open for the court to consider a conditional sentence for B.S. It is to be noted from Proulx that a conditional sentence must be able to achieve the objectives of denunciation and deterrence when that is the overriding consideration given the particular offence and the particular offender. Put simply, if the court does not feel that a conditional sentence can satisfy the need for general deterrence or specific deterrence, then it should not be imposed by the court.

[23] This principle does not change because B.S. is an Indigenous person. Although B.S. is a person of First Nation heritage, both defence counsel and Crown counsel are not taking the position that this factor played any part in bringing B.S. before the court and a Gladue report was not requested. Having said that, the court does take note that in B.S.’s childhood he was exposed to substance abuse problems by his parents and domestic violence within the home, which he witnessed. These are factors to be considered when sentencing B.S.

[24] Considering the aggravating factors in this case, including the age disparity between the offender and the victim, the vulnerability of the victim due to her young age, the escalation of behaviour by the offender and the devastating effect that the sexual abuse inflicted on her has had on the victim, a conditional sentence does not adequately address the need for denunciation or specific and general deterrence, given the circumstances of the case at bar, and therefore should not be imposed by this court.

[25] As an alternative to a conditional sentence, defence counsel suggested a “short, sharp” sentence of 90 days or less, which could be served intermittently by B.S. to maintain his employment. B.S.’s counsel pointed out to the court that B.S. can retire with a pension in nine years time and that a lengthy jail sentence would have devastating effects on B.S.’s employment. A sentence of 90 days or less is far from the range of acceptable sentences for acts of sexual abuse against a young person. To impose such a sentence, which, in my view, is woefully inadequate, would not meet the ends of justice in this case and would cause the public to lose confidence in the administration of justice.

[26] The Crown has asked for a custodial sentence in the range of between 12 to 18 months. In reflecting upon the aggravating and mitigating factors in this case, including the background of B.S., the comments in the pre-sentence report, the victim impact statement, the guidance provided by the jurisprudence and the principles of sentencing as set out in section 718 of the Criminal Code, my view is that a fit and just sentence is incarceration at the higher end of the range suggested by the Crown, namely 18 months. My view is the range suggested could have easily been extended to a sentence of two years less one day and, if that had been requested by the Crown, I would have imposed it. Having said this, I am confident that a sentence of 18 months is within the acceptable range given the facts and circumstances of the case at bar and that it is an appropriate sentence for the offender, B.S.

[27] Following his sentence, B.S. shall be placed on a probation order for a period of three years. In addition to the usual statutory conditions, the probation order shall contain the following terms:

(a) That B.S. report to a probation officer within seven days of his release from custody and be amenable to the direction of his probation officer; (b) That B.S. not communicate with, molest, harass or annoy the complainant; (c) That B.S. not be within 25 metres of the complainant’s residence or place of employment; (d) That B.S. engage in any counselling or treatment programs as is recommended by his probation officer.

[28] The Crown has requested, and I am imposing the following ancillary orders:

(a) A DNA order; (b) A SOIRA order for 20 years.

[29] I am also imposing an order pursuant to section 743.2(1) of the Criminal Code that the offender not have any contact with the complainant while he is serving his custodial sentence.

[30] The Crown has requested that the court impose an order under section 161(1) of the Criminal Code of Canada, and in particular under subsection (a), (b) and (c), which would restrict this offender’s attendance at public parks or swimming areas where children under 16 are present or volunteering, or being employed where children under 16 are present, or having any contact with children under the age of 16 years of age. I have considered this request but view it as being unnecessary given the background of the offender and the circumstances of this case. The fact is that the offender has gone for 40 years since the offence to the present date without any further alleged incidents of impropriety against any child or young person. The imposition of an order under section 161(1) of the Criminal Code is completely unnecessary in the case at bar.

Gareau J. Released: September 11, 2019