PETERBOROUGH COURT FILE NO.: CR-257/18
DATE: 20201127
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Robert Claxton
Defendant
William E. Barnes, for the Crown
George Gray, for the Defendant
HEARD: November 27, 2020.
Alexander Sosna J (Orally):
INTRODUCTION
[1] On May 14, 2019, the accused Robert Claxton (Claxton) pled guilty to the following offence:
THAT HE:
Between September 1, 1968, and June 30, 1973 at the City of Kawartha Lakes in the said Region, did commit the offence of indecent assault upon EB, a male, contrary to Section 156 of the Criminal Code.
[2] Sentencing submission were completed October 2, 2020. The matter was adjourned for sentence returnable this date November 27, 2020.
POSITION OF THE PARTIES
[3] The defence seeks a Conditional Sentence of 18 months with strict house arrest for one year with exceptions to allow Claxton to be absent from his residence for:
i. medical appointments and emergencies;
ii. scheduled appointments with the conditional sentence supervisor;
iii. to attend to personal needs between 2:00 pm and 6:00 pm on two specified days of the week and;
iv. for other purposes as approved in writing in advance by his conditional sentence supervisor.
[4] During the remaining 6 months of the Conditional Sentence, Claxton is bound by a curfew and other appropriate conditions as set by his conditional sentence supervisor.
[5] If this Court determines there is no legal authority to impose a Conditional Sentence, the defence seeks that a suspended sentence be imposed.
[6] In the alternative if the Court determines that given the circumstances of the offence and the offender, the appropriate sentence calls for a period of custody, the defence seeks the imposition of a 90-day intermittent sentence.
[7] The Crown submits that a conditional sentence is not available for this offence, and if available the imposition of a conditional sentence would be inconsistent with the principles of sentencing. The Crown seeks a jail sentence of 9 to 12 months followed by probation for 12 months. The terms of probation include counselling, and that during the period of probation Claxton have no contact or communication with EB. The Crown further seeks the following Ancillary Orders pursuant to the provisions of the Criminal Code:
(1) a s. 161 Order for 10 years;
(2) a s. 109 Weapons Prohibition Order for 5 years;
(3) a s. 487.04 that Claxton provide a suitable sample of his DNA and;
(4) a SOIRA Order for 20 years, pursuant to Section 490.012.
AGREED STATEMENT OF FACTS ON GUILTY PLEA (Exhibit1)
[8] EB (EB), born XXXX, is the fifth child in a family of seven children-five boys and two girls. Claxton, born February 2, 1949, befriended EB’s older brother Ivan, as well as their mother, and began spending significant time at the B family home.
[9] Between July 1, 1972, and June 30, 1973, when EB was 12 or 13 years old, he and his older brother Ivan were left in Claxton’s care. The remainder of the B family was away.
[10] After dinner, Claxton mixed “screwdriver” drinks with vodka and orange juice and supplied them both to EB and his brother Ivan. At bedtime EB went to his room, changed into pajamas, and got into his bed. Shortly thereafter, Claxton and Ivan came into the bedroom. Both were naked.
[11] Claxton took EB’s hand and placed it on [his] Claxton’s penis. He then put EB’s hand on Ivan’s penis and asked EB to compare sizes. Claxton then proceeded to put his penis in EB’s mouth. EB complained about the taste so Claxton instructed Ivan to suck on his [Claxton’s] penis to take some of the taste away. Claxton then put his penis back in EB’s mouth. Finding that the taste was still unpleasant, EB began to cry. The crying made Claxton stop and the event ended.
VICTIM IMPACT STATEMENT (Exhibit 2)
[12] EB states that Claxton developed a close friendship with his mother and was “…a valued and trusted member of my family…who provided a lot of support and to us, to my siblings, to me….” He believes his mother suspected or knew of the abuse. He blames her “…for letting this happen to me and that prevented me from developing a deep trusted relationship with her.” His mother has since died.
[13] He blames himself for what happened. He has experienced self-harm, self-loathing, which caused his personal relationships and marriage to suffer. He viewed himself as deficient, not wanted or valued, struggling to be “true to myself.” Ultimately, he received help from mental health professionals to uncover his feelings of dysfunction and began to heal.
[14] EB’s feelings of betrayal by Claxton, and breach of trust are evident throughout his statement.
THE OFFENDER
[15] Claxton is 71 years old. He had a stable and loving upbringing as an only child. There is no familial history of alcohol or drug abuse. Claxton believes his parents were aware of his sexual orientation as being gay but never openly talked about it. He never came out to his parents. Both parents are deceased.
[16] Claxton completed high school, graduated from the University of Toronto with a degree in Psychology in 1971. He attended Teachers’ College to complete certification in teaching. He taught at several Boards in Ontario resigning in 1983.
[17] He resumed employment in 1995 working as a driving instructor, and the same year became employed with a private career college; Toronto Compu Skills College. His job involved providing logistical support. For the last three years he has also been employed with a friend providing computer assistance in online purchases of collectibles and antiques. All sources consider Claxton to be an excellent employee.
[18] Claxton commenced a relationship at age 21 with Ivan, EB’s older brother. Their relationship lasted 6 years.
[19] At age 39, Claxton began a relationship with Victor, an 18-year-old male he met in Mexico. He and Claxton lived together in Toronto for 6 years. Tragically, Victor passed away at age 24 due to AIDS. Since then Claxton has remained single, lives alone, and has no dependents.
[20] Claxton has no history of drug or alcohol abuse.
[21] Claxton has no previous criminal record.
ISSUES AND THE LAW
[22] In the case at bar, the offence of Indecent Assault, has been repealed between the time of the commission of the offence, September 1, 1968, and June 30, 1973 and the time of sentencing, November 27, 2020. The question arises, what present offences correspond to Claxton’s acts of Indecent Assault and, what sentencing provisions are applicable.
THE POSITION OF THE CROWN
[23] As the Criminal Code has changed since the date of the offence, sentencing engages s. 11(i) of the Canadian Charter of Rights and Freedoms (the Charter).
Any person charged with an offence has the right…(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of the offence and the time of sentencing, to the benefit of the lesser punishment.
[24] R. v. Poulin, 2019 SCC 47, [2019] S.C.J. No. 47 provided guidance on the application of s. 11(i) in similar circumstances. The Court held that s. 11(i) of the Charter created a binary right- the offender is entitled to the lesser punishments existing either at the time of the offence or at the time of sentencing (at para. 34).
[25] The Court in Poulin set out four questions to guide the analysis of the above question.
a. What are the applicable sentencing provisions?
b. Which measures contained in these sentencing provisions constitute punishments?
c. Which punishments represent ‘lesser” punishments?
d. What punishments must be imposed to honour the offender’s s. 11(i) Charter right? (at para. 34).
AVAILABILITY OF A CONDITIONAL SENTENCE
[26] What are the applicable sentencing provisions?
[27] The Crown contends that first step in the Poulin analysis is to determine what sentencing provisions are applicable to the offence charged in the indictment before the court. Foremost is the provision setting out the penalty for the offence.
[28] A complication arises when the offence itself (Indecent Assault in the present matter), in addition to the punishment has been changed between the time of the commission of the offence (September 1, 1968 - June 30, 1973) and the time of sentencing (November 27, 2020).
[29] In Poulin the parties agreed that conditional sentences were not available at the time of the offence or at the time of sentencing (at para. 10). Therefore, the Court did not extensively review this question but provided guidance on what would be required absent agreement.
Without the parties’ agreement that the sentencing provisions applicable to the modern sexual offences apply in Mr. Poulin’s acts of gross indecency, it would have been necessary for the court to determine which crime(s) and associated provisions correspond to Mr. Poulin’s acts of gross indecency after this crime was repealed (at para. 36).
[30] The Crown submits if the offence no longer exists in its original form, then identifying its modern form by tracing the lineage of the offence is necessary to determine if there is a lesser punishment available now.
[31] Parliament in 1983, replaced several of the then existing sexual offences - namely rape, attempted rape, indecent assault on a male, indecent assault on a female, and sexual intercourse with the feeble-minded - with a modern set of sexual assault offences: sexual assault, sexual assault causing bodily harm or with a weapon, and aggravated assault (An Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, S.C. 1980-1981-82-83, c. 125, s. 19).
[32] Later in 1987, Parliament introduced a series of new sexual offences to complement sexual assault (An Act to amend the Criminal Code and the Canada Evidence Act, S.C. 1987, c. 24). Mainly offences against children - including sexual interference, exploitation, and invitation to sexual touching - these captured activities that did not necessarily fall within sexual or indecent assault and had limited analogues prior to their enactment. Sexual interference replaced the former offence of sexual intercourse with a female under 16 and created the first age-based offence that included males.
[33] Adopting the lineage analysis, the Crown submits that s. 271, sexual assault, is the corresponding offence to the offence of indecent assault charged in the indictment before the Court. The Crown further submits a conditional sentence is not available on the corresponding offence of sexual assault for these reasons.
[34] Section 265(1) defines assault in part as follows;
A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
[35] Section 271 of the Criminal Code reads in part;
Everyone who commits a sexual assault is guilty of
(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of no more than 14 years and to a minimum punishment of imprisonment for a term of one year…
[36] Sexual assault within the definition of Section 265(1) is committed in circumstances of a sexual nature such that the sexual integrity of the victim is violated (R. v. Chase, 1987 23 (SCC), [1987] 2 SCR 293 at para. 10). On the admitted facts, at a minimum the sexual integrity of the victim has been violated.
[37] As previously reviewed the Court in Poulin held that s. 11(i) of the Charter created a binary right; the offender is entitled to the lesser punishments existing either at the time of the offence or at the time of sentencing (at para. 34).
[38] The Crown submits when the offence of indecent assault (s. 156) was committed, a conditional sentence could not be imposed because the provision for a conditional sentence did not exist at that time.
[39] In the present matter, the Crown seeks a custodial sentence of 9 to 12 months. A sentence of less than two years engages s. 742.1, which authorizes the court to make an order for a conditional sentence subject to conditions. Section 742.1 reads in part:
If a person is convicted of an offence and the court imposes a sentence of imprisonment less than two years, the court may, for the purpose of supervising the offender’s behavior in the community, order the offender serve the sentence in the community subject to conditions imposed…
[40] One of the “conditions imposed” is s. 742.1(f)(iii) which statutorily bars a conditional sentence disposition for a conviction of sexual assault (s. 271). The Crown submits as a conditional sentence is not available on the corresponding offence of sexual assault, nor is it available on the offence before the court; indecent assault.
POSITION OF THE DEFENCE
[41] For the following reasons I adopt the defence submissions and find that a conditional sentence is available.
[42] As earlier noted, in Poulin, but for agreement of trial counsel that a conditional sentence was not available: “…it would have been necessary for the court to determine which crimes(s) and associated provisions correspond to Mr. Poulin’s acts of gross indecency after this crime was repealed” (at para. 36).
[43] Of importance para. 36 does not set out the criteria for determining which “crime(s) and associated provisions” correspond to the acts in question. However, the language focusses not on lineage between the modern and repealed offence as submitted by the Crown, but on the connection between the contemporary “crimes” and the “acts” in question.
[44] Further the Court’s use of the plural terms “crime(s)” and “provisions” acknowledges that as may be often the case, multiple contemporary offences may cover the acts in question.
[45] At para. 120, Friesen holds that Sexual Assault (s. 271) and Sexual Interference (s. 151) should be treated similarly.
…Parliament has established the same maximum sentences for both sexual interference and sexual assault of a person under 16. The elements of the offence are also similar, and a conviction for sexual assault of a child and sexual interference with a child can frequently be supported on the same factual foundation (R. v. M. (S.J.), 2009 ONCA 244, 247 O.A.C. 178, at para. 8).
[46] Section 151 reads in part;
Everyone who, for a sexual purpose, touches directly, or indirectly, any part of a body of a person under the age of 16 years
(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year…
[47] The offence of sexual interference is made out when the body of a complainant under the age of 16 years, is touched directly or indirectly with a part of the accused’s body. It must be proven that the accused had a sexual purpose for the touching.
[48] On the admitted facts, I find the offence of sexual interference is made out. Unlike s. 742.1(f)(iii) which statutorily bars the availability of a conditional sentence for sexual assault, sexual interference is not one of the listed offences statutorily barred in s. 742 from a conditional sentence disposition.
[49] In R. v. Sharma, 2020 ONCA 478, 152 O.R. (3d) 209, the Ontario Court of Appeal struck down the provision excluding sentences punishable by 14 years or more from consideration for a conditional sentence. Sexual interference calls for a period of: “…imprisonment for a term of not more than 14 years….” Accordingly, for these additional reasons, as a conditional sentence is available for the offence of sexual interference, a conditional sentence remains available on indecent assault charged in the present indictment.
APPLICABLE PRINCIPLES OF SENTENCING IN THE PRESENT CASE
[50] The Crown and defence have filed numerous authorities which I have considered. In that regard, I am guided by the recent Supreme Court of Canada decision in R. v. Friesen, 2020 SCC 9, [2019] S.C.J. No. 100 (SCC).
[51] The Court in Friesen states at para. 122: “Parliament has provided in s. 718 of the Criminal Code that ‘[t]he fundamental purpose of sentencing is to protect society’…this purpose takes on particular significance when criminal offences are enacted to protect vulnerable groups such as children from harm (see R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R. 571 (S.C.C.) at paras. 76, 122, and 131-132.”
[52] Friesen at para. 76 directs the courts as follows regarding the issue of sexual assault against children
…It is not sufficient for courts to simply state that offences against children are serious. The sentence imposed must reflect the normative character of the offender’s actions and the consequential harm to children and their families…. (see M. (C.A.), at para. 80; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90 (S.C.C.), at para. 35). We thus offer some guidance on how courts should give effect to the gravity of sexual offences against children. Specifically, courts must recognize and give effect to (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from these offences; and, (3) the actual harm that children suffer as a result of the offences. We emphasize that sexual offences against children are inherently wrongful and always put children at risk of serious harm, even as the degree of wrongfulness, the extent to which potential harm materializes, and actual harm vary from case to case.
[53] Section 718.01 states:
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 of such conduct. 2005, c. 32, s. 24.
[54] Friesen observes that Parliament enacted s. 718.01 in order to prioritize denunciation and deterrence for offences, inclusive of sexual offences, that involve abuse of children (see para. 101). Further adding at para. 105: “As L’Heureaux-Dubé J. reasoned in L.F.W., “sexual assault of a child is abhorrent to Canadian society and society’s condemnation of those who commit such offences must be communicated in the clearest terms” (para. 31, quoting L.F.W. (C.A.), at para. 117, per Cameron J.A.).”
[55] In support of a conditional sentence, the defence has filed several decisions that pre-date the decision in Friesen. On the issue of sentencing, at para. 110 the Court instructs as follows:
…[the] courts’ understanding of the gravity and harmfulness of sexual offences against children has deepened…As Peppal J.A. observed in Stuckless (2019), there has been a considerable evolution in Canadian society’s understanding of the gravity and harmfulness of these offences (para. 90). Sentences should thus increase “as courts more fully appreciate the damage that sexual exploitation by adults causes vulnerable, young victims” (Scofield, at para. 62). Courts should accordingly be cautious about relying on precedents that may be “dated” and fail to reflect “society’s current awareness of the impact of sexual abuse on children” (R. v. Vautour, 2016 BCCA 498 (B.C. C.A.), at para. 52….
WHAT IS THE APPROPRIATE SENTENCE TO BE IMPOSED?
[56] The central question to be determined is whether a conditional sentence as sought by the defence, is appropriate in the circumstances of both the offence and the offender.
[57] The plea of guilty as set out in the Agreed Statement of Facts, described a single incident of sexual exploitation. Without minimizing the seriousness of the incident, and how it traumatically affected the victim, in these sentencing reasons I specifically disregard information in the Pre-Sentence Report, (Exhibit 3) that Claxton over two years repeatedly sexually abused the victim.
[58] As noted earlier, s. 742.1 authorizes a court to make an order for a conditional sentence. The sentence must be less than two years.
[59] A conditional sentence may be made where the court is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing in ss. 718 and 718.2.
[60] Friesen sets out a list of non-exhaustive factors for consideration when sentences are imposed for offences that involve the abuse of children (at para. 105 and para. 121). A number of those factors are present in the case at bar.
THE POSITION OF THE DEFENCE
[61] The defence acknowledges that indecent assault is a serious offence. Courts have stressed the serious nature of sexual abuse against children. The paramount sentencing objectives for such cases are general deterrence and denunciation.
[62] However, the defence submits that a conditional sentence is appropriate for two reasons; the significant mitigating circumstances, and the serious risk that a jail sentence served during the global pandemic poses to Claxton considering his age and health issues.
[63] The defence cites the following mitigating factors:
a. Claxton is 71 years old.
b. Claxton has no previous record.
c. Claxton has been gainfully employed throughout his adult life. Presently he is employed by Career College Consultants, and Antique Collectibles. Both employers describe Claxton to be integral to their business, working well with customers (teenagers, adults, people with disabilities). Neither employer has received any complaint about Claxton. The owner of Antique Collectibles was shocked to hear about Claxton’s involvement with the criminal justice system (Pre-Sentence Report, Exhibit 3).
d. Claxton has pled guilty saving the victim EB the ordeal of trial testimony. However, although mitigating, I find it is less so, because EB did testify at the preliminary hearing. Additionally, the plea of guilty was not entered at an early stage of the proceedings.
e. On the Agreed Statement of Facts this was an isolated event. However, the Court in Friesen: “make[s] clear that in imposing proportionate sentences that respond to the gravity of sexual offences against children and the degree of responsibility of offenders will frequently require substantial sentences…We would add that substantial sentences can be imposed where there is only a single instance of sexual violence and /or a single victim…” (at para. 114).
f. Claxton has attended counselling since his arrest. He was assessed by Dr. Monik Kalia, a Clinical & Forensic Psychologist on July 15, and August 15, 2020. Dr. Kalia’s report is introduced as Exhibit 4. At pg. 11, Dr. Kalia notes: “To his [Claxton’s] credit he has not engaged in minimization or externalization of blame, rather he takes full responsibility for his behavior and presented as committed to understanding it.”
g. Claxton is remorseful for his actions as set out in his letter of apology (Exhibit 14). At the conclusion of sentencing submissions, he also made the following statement to the Court:
What I want to do is apologize to EB. I am very sorry for my treatment of you that night. It was wrong, it was very, very, wrong, and I’m even more sorry that it has haunted you all these years…I sincerely hope that these proceedings allow you some measure of closure.
[64] In determining the appropriateness of a conditional sentence, the following aggravating factors must also be considered by this court.
a. Age of the victim.
[65] Section 718.2 (ii.1) holds that: “evidence that the offender in committing the offence abused a person under eighteen years” is an aggravating circumstance.
[66] EB was 12 or 13 years old at the time of the offence. Claxton was twice his age.
b. Abuse of Position of Trust.
[67] Section 718.2 (iii) holds that an aggravating circumstance to be: “evidence that the offender in committing the offence, abused a position of trust or authority in relation to the victim.”
[68] Friesen at para. 129 observes:
The abuse of a position of trust is…aggravating because it increases the offender’s degree of responsibility. An offender who stands in a position of trust in relation to a child owes a duty to protect and care for the child that is not owed by a stranger. The breach of the duty of protection and care thus enhances moral blameworthiness (R. v. S. (W.B.) (1992), 1992 2761 (AB CA), 73 C.C.C. (3d) 530 (Alta. C.A.), at p. 537). The abuse of position of trust also exploits the children’s particular vulnerability to trusted adults, which is especially morally blameworthy (D. (D.), at paras. 24 and 35; Rayo, at paras. 121-22).
[69] Claxton was in a position of trust and authority. As described by EB in his Victim Impact Statement (Exhibit 2), Claxton was a trusted friend of the family. On the Admitted Statement of Facts (Exhibit 1) when sexually abused, EB was left in Claxton’s care while EB’s family was away.
c. Degree of Physical Interference.
[70] Freisen holds that: “…sexual violence against children remains inherently wrongful regardless of the degree of physical interference.” Nevertheless, the Court finds “…penetration, fellatio [as in the present matter], or cunnilingus…” to be sexually violent conduct (para. 145 and para.144).
[71] In the Admitted Statement of Facts (Exhibit 1), Claxton induced EB to sexually touch his own brother Ivan and engaged in sexual activities with both at the same time. Claxton put his penis in EB’s mouth. EB complained about the taste. Claxton then instructed that Ivan suck his penis to take the taste away. Claxton then reinserted his penis into EB’s mouth. Because EB began to cry, the incident ended.
d. Section 718.2 (iii.1) holds an aggravating factor to be: “evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health…”
[72] The offence had a significant impact on EB, driving a wedge between him and his parents who he believed should have protected him. EB spent over forty years burdened with anguish, self-doubt, and loathing reckoning with the incident. As set out in his Victim Impact Statement (Exhibit 2):
I blamed myself for what happened to me. I have blamed my parents for allowing Rob Claxton into our home. I blamed my mother for letting this happen to me, and that prevented me from developing a deep, trusting relationship with her. She has gone now; I will never have that.
HEALTH ISSUES AND COVID 19
[73] The defence submits for most offenders, a jail sentence does not pose a realistic risk of death or serious illness. However, for Claxton, with his age (71) and co-morbidities, serving a jail sentence during a global epidemic would be accompanied by some risk.
[74] The defence introduced Exhibit 6, a medical report dated September 23, 2020, authored by Dr. Quang Nguyen, Claxton’s family doctor. The report chronicles Claxton’s on-going medical issues which require management. They include depression, osteoarthritis, morbid obesity, and diabetes mellitus type 2.
[75] Recently, Claxton has been diagnosed with colon cancer and severe sleep apnea. Claxton required surgery to remove the cancer and remains under the care of his cancer surgeon. He also now requires a CPAP machine to sleep.
[76] In part, Dr. Nguyen concludes; “due to [Claxton’s] age and comorbidities, Robert would be highly susceptible to COVID-19 in prison and he would have a high fatality risk if he were to contact COVID-19.”
[77] Setting aside the issue of COVID, in order to find Claxton’s health issues as mitigating, there must be evidence that his condition could not properly be treated while he is incarcerated (R. v. H.S., 2014 ONCA 323, 308 C.C.C. (3d) 27 at para. 38). The incarceration of the elderly or infirm is not novel for the correctional system. Provincial reformatories are required to care for the health of inmates, or when needs cannot be met, transfer the inmate to a hospital (Ministry of Correctional Services Act, R.S.O. 1990, c. M.22, s. 24). They are further required to have professionals on site (R.R.O. 1990, Reg. 778, s. 24).
[78] No evidence to the contrary has been introduced regarding the above.
[79] Regarding COVID there is evidence based on Dr. Nguyen’s report to demonstrate that Claxton has health issues that may make him more susceptible to contracting COVID.
[80] In R. v. Hearns, 2000 ONSC 2365, Pomerance J. observed that the: “…jails have become harsher environments, either because of the risk of infection or, because of restrictive lock down conditions aimed at preventing infection. Punishment is increased…by the risk of contracting the virus…” (at para. 16).
[81] However, without evidence adduced about how the correctional institutions are or are not addressing the COVID virus and its potential spread, it would be speculative for this court to draw any conclusion as to the impact the COVID virus may have on Claxton if sentenced to a jail term (R. v. Brown, [2020] O.J. 1432).
LIKELIHOOD TO REOFFEND
[82] Given that s. 718 states: “[the] fundamental purpose of sentencing is to protect society…” the likelihood of reoffending is a relevant sentencing consideration. The same consideration, likelihood of reoffending, is similarly stated in s. 742.1(a) which authorizes the court to order a conditional sentence in part if “the court is satisfied that the service of the sentence would not endanger the safety of the community….”
[83] The likelihood of Claxton reoffending is reviewed in the Psychosexual Risk Assessment prepared by Dr. Kalia (Exhibit 4). He finds:
Mr. Claxton has suffered from homosexual pedophilia since his young adulthood years…. While his laboratory testing still indicates that he has an underlying arousal to minor males, his behaviour over the years indicates the absence of any similar allegations or concerns. …The present offence is of a historical nature. Apart from the index offence, he has related well to young males throughout his life…He reports low sex drive and his advanced age is a major factor that will continue to lower his risk. Overall, I see his risk as low and it is unlikely that he will reoffend. He has participated in some counselling and I am of the opinion that, as a precaution he should attend sexual offence-specific counselling… (page 11).
CONCLUSION: THE APPROPRIATE SENTENCE IN THIS CASE
[84] Having concluded that a conditional sentence is available for the offence of indecent assault, I find however a conditional sentence is not an appropriate disposition in the case at bar.
[85] Nor do I find as submitted by the defence that in lieu of a conditional sentence, the court impose a suspended sentence, or in the alternative a 90-day intermittent sentence.
[86] As previously reviewed, s. 718 provides that the fundamental purpose of sentencing is to protect society. It then lists the objectives that a sentence should attempt to achieve. Those objectives are denunciation, general and specific deterrence, separation of offenders, rehabilitation, making reparations, and promotion of a sense of responsibility.
[87] R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, held that Parliament mandated the expanded use of restorative principles in sentencing because of the general failure of incarceration to rehabilitate offenders and reintegrate them back into society. Because it is served in the community, a conditional sentence imposed under s. 742.1, will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation.
[88] The offender Claxton is 71 years of age. He has no previous record. Other than now being convicted of indecent assault, that occurred over 40 years ago, he has lived a crime free life. According to the risk assessment authored by Dr, Kalia, Claxton’s risk of reoffending is low. Although no one can predict future events with certainty, from a clinical perspective, Dr. Kalia opines that it is unlikely that Claxton will reoffend.
[89] Therefore, the sentencing objectives of rehabilitation, making reparations, promotion of a sense of responsibility, and specific deterrence, as they relate to Claxton, factor little in the present case. However, for the following reasons the sentencing objectives of denunciation and general deterrence remain applicable
[90] Parliament has recognized the profound harm caused by sexual offences against children by enacting s. 718.01. That provision states: “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 of such conduct.” Accordingly, s. 718.01 underlines: “…the need for courts to impose more severe sanctions for sexual offences against children” (Friesen at para. 95 para. 101).
[91] The sanctions above include custody. As noted in Friesen at para 103: “The objective of separation from society is closely related to deterrence and denunciation for sexual offences against children (Woodward, at para. 76). When appropriate…separation from society can be the means to reinforce and give practical effect to deterrence and denunciation.”
[92] For the above reasons, Robert Claxton is sentenced to 9 months in custody followed by probation for 12 months. The terms of probation include counselling as recommended by his probation officer, and that Claxton have no contact or communication with EB during the period of probation
[93] He is also bound by the following Ancillary Orders pursuant to the provisions of the Criminal Code.
(1) a s. 109 Weapons Prohibition Order for 5 years;
(2) a s. 487.04 Order that Claxton provide a suitable sample of his DNA and;
(3) a s. 490.012 (1) Order for 20 years pursuant to the Sex Offender Information Registration Act.
[94] The Crown also seeks a s. 161 Order. Section 161 of the Code requires the Court to consider prohibiting the offender from attending various locations were persons under 16 can reasonably expected to be present; obtaining or continuing employment that involves being in a position of trust or authority towards a person under 16; having any contact or communicating with persons with persons under 16; or using the internet.
[95] In R. v. Schulz, 2018 ONCA 598, 142 O.R. (3d) 128, at paras. 40-50 the Ontario Court of Appeal reviewed the jurisprudence relating to s. 161 Orders. The Court stated, at para. 41:
The overarching protective function of s. 161 of the Criminal Code is to shield children from sexual violence: R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at para. 44. An order under s. 161 constitutes punishment and is not available as a matter of course; there must be an evidentiary basis upon which to conclude that the particular offender poses a risk to children; the specific terms of the order must constitute a reasonable attempt to minimize the risk; the content of the order must respond carefully to the offenders in specific circumstances: K.R.J. at paras. 48-49.
[96] Claxton’s present employment providing logistical support and computer assistance in online purchases undoubtably requires access to the internet, contact and communication with numerous individuals some potentially under the age of 16, and attending locations where such persons under age 16 may be present. He is considered to be an excellent employee. No complaints have been made about Claxton regarding inappropriate conduct, sexual or otherwise. As noted in Dr. Kalia’s assessment “Apart from the index offence, [Claxton] has related well to young males throughout his life…I see his risk is low and it is unlikely that he will reoffend.”
[97] There is no evidentiary basis upon which to conclude that Claxton poses a risk to children. Accordingly, the s. 161 Order as sought by the Crown is not granted.
Justice Alexander Sosna
Released: November 27, 2020
PETERBOROUGH COURT FILE NO.: CR-257/18
DATE: 20201127
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Robert Claxton
REASONS FOR JUDGMENT
Justice Alexander Sosna
Released: November 27, 2020