COURT FILE NO.: CR-18-40000332-0000
DATE: 20190913
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
STEPHEN JOSEPH SCHACTER
REASONS FOR SENTENCE
BEFORE THE HONOURABLE JUSTICE D.L. CORBETT
On September 13, 2019, at TORONTO, Ontario
INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED,
BROADCAST OR TRANSMITTED PURSUANT TO SECTION 486.4 OF THE
CRIMINAL CODE OF CANADA
APPEARANCES:
G. McLoughlin
Counsel for the Crown
J. Kappy
Counsel for Stephen Schacter
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED,
BROADCAST OR TRANSMITTED PURSUANT TO SECTION 486.4 OF THE
CRIMINAL CODE OF CANADA
ENTERED ON PAGE
REASONS FOR SENTENCE
2
LEGEND
[sic] Indicates preceding word has been reproduced verbatim and is not a transcription error
(ph) Indicates preceding word has been spelled phonetically
... Indicates interruption
.... Indicates incomplete thought and/or interruption
Transcript Ordered:
September 16, 2019
Transcript Completed:
October 2, 2019
Ordering Party Notified:
October 2, 2019
FRIDAY, SEPTEMBER 13, 2019
... DISCUSSION RE COLLATERAL ORDERS
THE COURT: I will give my reasons in respect to those collateral orders at the beginning, since I’ve now mentioned them.
There’s a mandatory order under the Sex Offender’s Registry and I’m making that order for life. I am ordering that you not have contact with or communication with the four victims, who are named in the Indictment; I’m not going to name them here, in case these reasons are transcribed. But the order that I will sign will name them.
Sir, you will be prohibited from going within 200 metres of any public park, swim area, schoolground, playground. You will be prohibited from seeking or obtaining employment that would put you in contact with persons under the age of 16 and you will be prohibited from having any contact with persons under the age of 16, unless in the presence of a person who is over the age of 18.
You will be required to provide a DNA sample, that’s mandatory in respect to these offences. And you will be prohibited from possessing or owning any weapons; I’m not going to give you a definition of what a “weapon” is. If you have a question, you can ask Mr. Kappy. It doesn’t mean you can’t have a kitchen knife in your own home, but aside from that, you’re prohibited from having anything that might be viewed as an offensive weapon. That’s a mandatory order for these offences. I don’t have a discretion not to order that. I wouldn’t otherwise order it, because your offences did not involve weapons and there is no reason for me to be concerned that you would arm yourself for some reason. However, I am required to make that order, and I will make it for a period of 10 years, which is the minimum period that I can order a weapons prohibition.
So I will not be explaining those things again. You will receive copies; those are separate orders that I sign. I started out by mentioning them so that the registrar can complete the paperwork while I am providing my reasons, and I will then be able to sign them.
Yes, ma’am?
MS. MCLOUGHLIN: Your Honour, I did make a mistake with respect to “sexual interference”: it’s actually a 109 order for the weapons prohibition. It’s 110 for a sexual assault offence.
THE COURT: Okay; 109, okay. But it’s the same order.
MS. MCLOUGHLIN: Yes. Thank you.
REASONS FOR SENTENCE
CORBETT, J. (Orally):
Today I sentence Stephen Schacter for his crimes against four young boys over the course of more than two decades. My factual findings are set out in my reasons for finding Mr. Schacter guilty of the crimes alleged against him. I do not repeat the facts as set out in my findings on liability.
It has been clear that Mr. Schacter has been in a state of profound denial as to who he is and what he has done. Mr. Schacter is a personable, I would say charismatic person, and has persuaded many around him that he is a “nurturing sort of guy,” to use a phrase from Mr. Schacter’s mother’s testimony; “a great and caring teacher,” as reflected in praise from parents, and confidence from school officials where he worked; and a “pious and godly man” in the eyes of many senior members of his religious community.
Many of these people have not believed the terrible allegations against Mr. Schacter, and perhaps still do not believe them now. Let me therefore be clear again, at the outset of these reasons.
Mr. Schacter, when a young man in his twenties, carried on a sexual relationship with “Adam” for a period of two years. The relationship did not involve sexual intercourse but it did involve manual and oral stimulation, and other sustained sexual conduct. “Adam” was 11 years old when this started. Although I am not sanguine that Mr. Schacter was in a position of trust, as that phrase is understood in the Criminal Code, when this liaison started, once he worked as a substitute teacher for this boy he was in this category. This was a life-altering experience for the boy, as he explained in his testimony and in his victim impact statement.
And although it would not be fair to say that the boy’s life was ruined, it is fair to say that his sense of self-worth; his capacity to trust and be open in his close relationships; and his mental health, have all been affected with significant impact on his career, his family life and his well-being.
The crimes against the other three victims were neither as invasive physically nor as prolonged temporally. But they were committed when Mr. Schacter was a primary school teacher and the boys were young students in his care, in the school: generally around the age of 8. Their senses of violation and outrage at having been victimized as they were, by a trusted and venerated teacher, was palpable in their testimony; and for two of them, in their victim impact statements.
The Crown seeks an overall sentence of six years. The defence asks for a sentence served conditionally, or alternatively, a sentence of 18 months less one day, which would leave Mr. Schacter in a provincial facility and able to access better health programs to address his issues. The figure of “18 months less one day” is the necessary figure for such a result, given the sentence of six months from the Ontario Court of Justice in the conviction of Mr. Schacter on his child pornography charges.
In support of the defence position, I have evidence that Mr. Schacter has multiple health issues, takes many medications each day and has severe dietary restrictions, both for health reasons and as a result of his religious convictions. It is, of course, for prison authorities to ensure that necessary medical services, including access to medicine, are provided to prisoners. It is also for prison authorities to accommodate the religious practices of inmates. All of which is to be done, not to the subjective satisfaction of the prisoners, but to the point of undue hardship.
Recourse for alleged failure of the prison system to meet these obligations is not a matter for this Court, but is dealt with internally at the prison; and ultimately in administrative or human rights proceedings. Only where it is established on evidence that the prison system cannot or will not meet the needs and rights of an offender and the consequences of this failure are material, will this Court take such an issue into account on sentencing. The evidence here falls far short of that.
Mr. Schacter sexually assaulted four boys. The appropriate sentencing range is a penitentiary sentence, not a reformatory sentence. And Mr. Schacter’s medical and religious circumstances do not change this. The appropriate range for the first complainant, “Adam,” is four to five years, in my view.
Sentencing has trended higher for these offences in recent years. As stated by Moldaver, J.A. in R. v. D.(D.), mid to upper single-digit sentences will be the norm, to give effect to the principle of denunciation reflected in Section 718.01 of the Criminal Code of Canada for these sorts of offences, victimizing children. These principles are repeated in the case law. See R. v. Woodward, R. v. D.M.; and the most recent decision, involving Stuckless from the Court of Appeal in 2019.
Aggravating factors here include:
• abuse of a person under 18, S. 718.2(a)(ii.1);
• abuse of trust or authority, 718.2(a)(iii); and
• significant impact on the victim, 718.2(a)(iii.1)
I am also very concerned about Mr. Schacter’s continuing denials about the nature of his sexual desire, and the facts about what he has done. Of course it is not an aggravating circumstance that Mr. Schacter did not plead guilty. But he continued to lie: to the Court, the world and, I believe, to himself, about the nature of his sexual attraction to boys. And in circumstances where this lie was patently ridiculous.
For the first time, in the report of Dr. Heasman(ph), we see evidence tendered by the defence, that Mr. Schacter suffers from a pedophilic disorder. I would be more heartened by this report but for the report of Dr. Woodside (ph), which suggests that Mr. Schacter sees himself attracted to very slim, petite women; women who resemble boys, rather than being attracted to boys. This did not change Dr. Heasman’s opinion, nor does it change my conclusion.
Mr. Schacter, you collected erotic pictures of young boys. You sexually assaulted four boys over a period of more than 20 years. Sir, you are obviously attracted to young boys. And until you acknowledge this about yourself and obtain the help you need to function in society, you present a risk to re-offend.
In your statement at sentencing, you acknowledged doing harm and apologized for it; sincerely, I believe. But you still couched your words in terms of misunderstandings and thoughtlessness. The misunderstanding here, sir, is your misunderstanding about your own nature, what you have done, and what the consequences are. Until you face these things, I consider you a risk to re-offend and consider that specific deterrence must also play a role in sentencing.
For all of these reasons, I generally accept the Crown position on sentencing, and sentence you in respect to:
• the first complainant, “Adam” - four years;
• the second complainant, “Bobby” - nine months, consecutive;
• the third complainant, “Charles” - three months, consecutive; and
• the fourth complainant, “David” - three months, consecutive.
The sentences I have imposed for the last two complainants are lower than those that had been proposed by the Crown because I consider those episodic events to have been much more isolated in time, and in place, than the facts involving Adam or Bobby. This yields a total sentence of five years and three months.
I accept that Mr. Schacter’s bail terms were sufficiently restrictive to warrant some Downes credit. He was 17-months’ under house arrest; I am satisfied, however, that he could have obtained variation to work, had he sought that, and that his efforts have been focused on defending himself on these charges and those before the Ontario Court of Justice. You do not get Downes credit for the consequences of being charged; rather, for the consequences of bail terms.
In all, I consider that credit of roughly one-sixth for the house-arrest period is appropriate, which I fix at a total of three months; leaving a total sentence to be served, as of today, of five years.
The ancillary orders requested by the Crown are not challenged, and are granted.
Those are my reasons. May I have the Indictment, please.
CLERK REGISTRAR: Certainly.
MS. MCLOUGHLIN: Your Honour....
CLERK REGISTRAR: If I could just get some clarification: You mentioned 487.04, which are primary designated offences. Is it secondary or primary? because it makes a difference in terms of the paperwork.
MS. MCLOUGHLIN: Primary.
CLERK REGISTRAR: Primary?
MS. MCLOUGHLIN: Yes. And just with respect to your sentence, Your Honour, are you able to provide a position — it should be consecutive to the child pornography conviction; I just want to make sure that it’s clear on record...
THE COURT: All right.
MS. MCLOUGHLIN: ...so that they are not served concurrently.
THE COURT: Right. It is consecutive to the child pornography. Today is September....
MR. KAPPY: May I make submissions to that?
THE COURT: Yes. I didn’t hear submissions on that last day, so if there’s any issue with that, then yes, I will hear.
Let me endorse what I’ve just done on the Indictment, and then I will hear both sides on the issue of whether this should be consecutive or concurrent to the sentence imposed on the child pornography charges.
MR. KAPPY: While you’re endorsing it, Your Honour, would you consider putting in that he should be shipped to Toronto South? We tried to make provisions for him there; various — in regard to Kosher diet and regard to religious material.
THE COURT: Well, he’s not going to be in Toronto South any more.
MR. KAPPY: Well, he’s got to be started in there; he’s starting there. They all start there when they come from here. They go to Toronto South and then they’re assessed and classified, and then sent to whichever....
THE COURT: I thought he’d be sent to Kingston. I’ll hear you on that, and any submissions on that, ma’am. My understanding was that with a penitentiary sentence he’d be in a federal facility as of — if not tonight, tomorrow.
MR. KAPPY: My understanding, my experience, is that you go to one of the local holding cells where you get assessed and they figure out which institution is best-suited for you and that kind of stuff.
THE COURT: All right. Well, I’ll hear from both of you on that after I’ve endorsed what I’ve just said.
Now. There are two charges involving the third victim and two charges involving the fourth victim. I’m imposing three-month sentences for each, but concurrent to each other.
MS. MCLOUGHLIN: In fact, I am content that the counts for sexual assault on [Charles]....
THE COURT: I’ve done everything I can, not to name the victims.
MS. MCLOUGHLIN: Sorry, I apologize. So if I’m looking at....
THE COURT: So, Mr. Reporter, could we make a note that that should be changed to “Charles” rather than the name that was just used by the Crown attorney.
MS. MCLOUGHLIN: So with respect to the sexual assault counts against “Charles” and “David,” I am content that those be stayed pursuant to R. v. Kienapple.
THE COURT: Okay. So this is counts — which ones?
MS. MCLOUGHLIN: So if I can just confirm that with respect to Charles, it would be Count 3 on the Indictment; and with respect to David, it would be Count 5 on the Indictment.
THE COURT: All right. The two points that you wish to address are: Whether the sentence is concurrent or consecutive to the sentence imposed by the Ontario Court of Justice; and the second, is whether I should make any suggestions to — I won’t make an order — but whether I should make any suggestions to prison authorities about where Mr. Schacter goes now.
So, I’ll hear from the Crown on the first point, then I’ll hear from the defence on both points. And then I’ll hear from you in-reply on the location issue.
... SUBMISSIONS
THE COURT: What I have added to my endorsement — well, I’ll just read the endorsement.
For reasons given orally, Mr. Schacter is sentenced:
Count 1 – 4 years;
Count 2 – 9 months, consecutive;
Count 3, Count 4 — 3 months, consecutive;
Count 6 - 3 months, consecutive;
Counts 3 and 5 - stayed per Kienapple, at the request of the Crown.
Downes credit of 3 months: total time to serve, 5 years.
SOIRA order for life, S. 490.011(a) and 490.013(1);
Non-contact, non-communication order in respect to all four victims, S. 743.21;
Prohibition order per S. 161(1), within 200 metres;
DNA sample per S. 487.04;
Weapons prohibition for 10 years, per S. 109.
Pursuant to S. 718.3(7)(a), these sentences are to be served consecutively to the sentence imposed on Mr. Schacter by Chapman, J. in the OCJ, for an offence under S. 163.1.
Mr. Kappy requests that Mr. Schacter be sent to the Toronto South facility for assessment. He advises that his office has taken steps to facilitate accommodation of Mr. Schacter’s needs at that facility, and it would be constructive for both Mr. Schacter and the system if he was sent there. I will not make an order to this effect. It would create chaos if sentencing judges usurped the role of corrections officials in that way. But I am prepared to recommend this disposition, if it can be accommodated. The Crown does not oppose this recommendation.
MR. KAPPY: I thank you, sir.
THE COURT: Is there anything further for today?
MS. MCLOUGHLIN: May I just confirm, Your Honour, the duration of the 161 prohibition? I may have missed that, I just wanted to confirm.
MR. KAPPY: Ten years.
THE COURT: I didn’t indicate it: it’s for life.
MS. MCLOUGHLIN: Thank you.
THE COURT: Anything else that needs to be addressed?
CLERK REGISTRAR: No. Just in terms of clarification with respect to the firearms prohibition: It’s in respect of all six counts before the Court?
THE COURT: Four counts; I’ve stayed two of them. I’ve stayed Counts 3 and 5.
CLERK REGISTRAR: Okay, 3 and 5 stayed. Okay. And it’s pursuant to Section 110? not 109?
THE COURT: 109.
CLERK REGISTRAR: Is it 109 for 10 years? okay.
MS. MCLOUGHLIN: The 109 is specifically for the sexual interference allegations, which is count — sorry, convictions — which is Counts 4 and 6.
CLERK REGISTRAR: So when we’re talking with Counts 4 and 6 with respect to the firearms prohibition....
MS. MCLOUGHLIN: So, 109 would be for the — yes, for the sexual interference convictions; and then it would be a 110 for the others, but I am content that it just be the 109.
THE COURT: You only need the one.
MS. MCLOUGHLIN: Yes.
THE COURT: Right.
MS. MCLOUGHLIN: Right.
THE COURT: Section 109 for Counts 4 and 6.
MS. MCLOUGHLIN: Yes.
CLERK REGISTRAR: For 10 years.
THE COURT: Yes.
CLERK REGISTRAR: Thank you.
THE COURT: Are there any other matters that need to be addressed?
MS. MCLOUGHLIN: No.
... DISCUSSION WITH CLERK REGISTRAR
THE COURT: I want to thank counsel. Trial counsel for the Crown isn’t here, but I would like to thank her as well. And I also want to thank Mr. Kappy. This was a very well-presented trial, on both sides. I think everything that could be done for the parties was done effectively and with good judgment, and I am greatly obliged to everyone for their good hard work on this matter. These are always difficult cases for everybody involved and I appreciate your work.
I also appreciate the work of the officer in charge. Thank you.
MATTER CONCLUDED
Form 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2))
Evidence Act
I,
Susan Porter,
certify that this document is a true and accurate transcript of the recording of
(Name of Authorized Person)
R. v. Stephen Joseph Schacter
in the
Superior Court of Justice
(Name of Case)
(Name of Court)
held at
361 University Avenue, Courtroom 4-9, TORONTO
(Court Address)
Taken from recording:
4899_4-9_20190913_085939__10_CORBETD.dcr,
Which has been certified in Form 1.
October 2, 2019
(Date)
(Signature of Authorized Person)