R. v. Parsons, 2020 ONSC 5412

COURT FILE NO.: CR-19-698

DATE: 20200910

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

LAWRENCE PARSONS

Defendant

Elizabeth Wilson, for the Crown

Frederick Leitch, for the Defendant

K.A. GORMAN

1Following a judge alone trial, I found Mr. Parsons guilty of sexual interference contrary to s. 151 of the Criminal Code of Canada. It now falls to the court to determine the appropriate sentence.

THE OFFENDER

2Mr. Parsons is an 80 year old first offender. He has been married for 55 years to his wife Ann, with whom he has four children and four grandchildren.

3Mr. Parsons suffers from many physical ailments as evidence by the letter provided to the court by his family physician¹. These include: diabetes, emphysema and high blood pressure. He suffered damage to his right sciatic nerve following hip replacement surgery in 2003, and now has resultant long-term, irreversible back, hip and leg pain and numbness. He uses a cane to walk and has difficulty with stairs and long distances. He and his wife have moved from their home into a long-term care facility.

THE VICTIM

4At the time of the offence, Brecken Albrecht was a nine year old third grade student.

5Brecken’s mother Laura filed a Victim Impact Statement. She feels that as parents, she and her husband have failed Brecken. She is consumed with anger and guilt, believing that she failed to protect her young son. It is clear that the incident has been devastating.

POSITIONS OF THE PARTIES

6The Crown submits that the appropriate sentence is one of twelve months in jail, followed by two years of probation, together with the appropriate ancillary orders.

7Counsel for Mr. Parsons asks the court to consider a conditional sentence.

PRINCIPLES OF SENTENCING

8The 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 acknowledgment of the harm done to victims and to the community.²

9Denunciation is important to reflect society's condemnation of certain conduct by punishing those who disobey society's basic values. Deterrence is important to deter the offender in question and to deter others who commit such offences. Denunciation and general deterrence are the over-riding principles of sentencing to be applied in cases of sexual interference.

10In most criminal cases there are both mitigating and aggravating factors for the court to consider. This case is no exception.

11The mitigating facts are:

a) Mr. Parsons is a first-time offender;

b) He has the support of his wife of 55 years;

c) He is 80 years old;

d) He is severely medically compromised; and

e) The single incident for which he has been found guilty, was non-violent.

12The aggravating factors are:

a) The age of the victim – 9 years old;

b) There was an aspect of “grooming” over the course of the relationship between Mr. Parsons and Brecken including hugging, kissing and the offering of candy; and

c) The nature of their relationship. Mr. Parsons, as a volunteer tutor, was in a position of trust with Brecken, which he clearly breached.

13The Court of Appeal for Ontario has held in R. v. Barua, 2014 ONCA 34, [2014] O.J. No. 248:

[…] a sexual assault on a young victim in the circumstances of this case would normally attract a medium to high range reformatory sentence even for a first offender.

14The rationale for this position is simple, as the court stated in R. v. D.D. (2002), 2002 CanLII 44915:

We as a society owe it to our children to protect them from the harm caused by offenders like the appellant. Our children are at once our most valued and our most vulnerable assets. Throughout their formative years, they are manifestly incapable of defending themselves against predators like the appellant and as such, they make easy prey. People like the appellant know this only too well and they exploit it to achieve their selfish ends, heedless of the dire consequences that can and often do follow.

15As the court recently stated in R. v. Friesen 2020 SCC 9:

Protecting children from wrongful exploitation and harm is the overarching objective of the legislative scheme of sexual offences against children in the Criminal Code. Our society is committed to protecting children and ensuring their rights and interests are respected (Baker v. Canada (Minister of Citizenship & Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 (S.C.C.), at para. 67). As Otis J.A. stated in R. v. L. (J.) (1998), (sub nom. R. v. L. (J.-J.)) 1998 CanLII 12722 (QC CA), 126 C.C.C. (3d) 235 (C.A. Que.) [hereinafter L. (J.-J.)], [TRANSLATION] "the protection of children constitute[s] one of the essential and perennial values" of Canadian society (p. 250). Protecting children from becoming victims of sexual offences is thus vital in a free and democratic society (R. v. Mills, 2019 SCC 22 (S.C.C.), at para. 23).

16I acknowledge that there is a range of sentences available to the court to consider, and as Chief Justice Lamer stated in R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, (1996), 105 C.C.C. (3d) 327, 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.

17The sentence proposed by the Crown is neither unusual nor unfair.

18However, I am instructed by the decision of R. v. A.R. 1994 CanLII 4524 (MB CA), 88 CCC(3d) 184(Man. C.A.). In that case the accused was convicted of having sexual intercourse with his then 13 year old daughter. At the time of sentencing he was 71 years old, had muscular dystrophy, was wheelchair-bound and had no criminal record. The court held that while a prison term was the usual sentence,

An accused’s infirmity, always a factor to be considered, may warrant a reduction on the sentence that would otherwise have been imposed or a different kind of sentence. It all depends on the nature and effect of the infirmity and the nature and seriousness of the crime. Compassion must neither be stifled nor allowed to take control.³

19Although general deterrence is a paramount consideration, I doubt that any prospective offender would be enticed to commit a similar offence by the possibility of a non-custodial sentence or a reduced sentence. For as the court stated in A.R. (ibid) at para 43:

Such a person would surely not wish to qualify for lenient treatment by being struck down by disabling muscular dystrophy.

20On March 23, 2020 the Superior Court of Justice, in the province of Ontario, was closed due to the ravishes of COVID-19. All lines of business were stopped.

21The COVID-19 virus has had a devasting effect on the province’s population. Its most vulnerable victims have been the elderly and those persons with pre-existing medical conditions, including heart and lung issues.

22On July 24, 2020, the Ontario Court of Appeal struck down s. 742.1(c) of the Criminal Code of Canada, which removed the availability of a conditional sentence for offences, prosecuted by indictment, where the maximum penalty is 14 years in prison. Section 151 of the Code is such an offence: R. v. Sharma 2020 ONCA 478, 2020 O.J. No. 3183.

23As the court stated in Sharma (supra) at para 30:

When they were introduced, conditional sentences represented a unique mode of sentencing. Conditional sentences allow a sentencing judge to impose a sentence to fit the circumstances of the offender and further the goals of denunciation and deterrence but permit the offender to serve that sentence in the community on conditions including a form of house arrest. The statutory scheme sets out certain mandatory conditions in s. 742.3(1) and confers discretion on the sentencing judge to impose further conditions in s. 742.3(2). When first enacted, a conditional sentence could be imposed where three conditions were met: the offence did not carry a mandatory minimum sentence; the sentence imposed was less than two years; and serving the sentence in the community would not pose a danger to the community.

24As for the principle of denunciation, the punishment must fit the offender as well as the offence. In this case, Mr. Parsons is an elderly man, with numerous ailments. He has suffered the indignity of a conviction for a heinous offence. These factors are sufficient to satisfy the principle of denunciation.

25If sentenced to a term of incarceration, based on the COVID-19 virus, his age and underlying health conditions, it is the view of the court that he likely would not survive his sentence.

26I am satisfied that a sentence to be served in the community would not endanger the public and would adequately satisfy the principles of sentencing set out in s. 718.

27I do not come to this decision lightly. The sentencing factors in this case are exceptional in nature and unlikely to provide any meaningful precedent going forward.

28The court sentences you to 12 months, to be served conditionally, in the community, with the following conditions:

1. Report to supervisor within two business days, and thereafter as directed;

2. Take whatever treatment that your supervisor may so direct;

3. Not to be within 100m of the persons of Brecken, Brianna or Laura Albrecht;

4. Not to be within 100m of the known residence of the Albrechts;

5. Not to be within 100m of the schools where either Brecken or Brianna attend;

6. No contact directly or indirectly with any of the foregoing; and

7. Be of good behaviour and keep the peace.

29There will be a DNA order as it is a primary designated offence. Section 109 order for a period of 10 years. You will be placed on the SOIRA registry for a period of 20 years. There will be a s. 161 order for a period of 20 years.

Footnotes

1. 1Exhibit #1
2. 2S. 718 Criminal Code of Canada
3. 3At para. 37; see also R. v. Lysack, 1988 CarswellOnt 987