Her Majesty the Queen v. D.C., 2021 ONSC 475

COURT FILE NO.: CR-1013/18

DATE: 2021-01-19

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

D.C.

Accused

S. Baker, for the Crown

N. Xynnis, for the accused

HEARD at Sudbury: December 15, 2020

REASONS FOR SENTENCE

A.D. Kurke, J.

1The accused is before the court for sentencing on counts of sexual assault, assault causing bodily harm, and simple assault after conviction early in 2020 (R. v. D.C., 2020 ONSC 1253). This matter, like so many others, has been significantly delayed as a result of the COVID-19 pandemic. The complainant on all Counts is K.J., who met the accused when she was a 14-year-old aspiring sprinter, and he a track coach five years her senior. He remained her coach through much of their relationship and became her husband after she turned 18.

2Sentencing is a highly individualized process and depends on the circumstances of the offender and of the offences, including the effect of the offences on their victim.

The sexual assault charge

3The context of the sexual assault charge is important.

4The accused was a sprinter and graduated from a Sudbury high school in 1980. He received a track scholarship to the University of South Dakota at Vermillion in the United States and started there in January 1981. When not at school himself, he trained, competed, and coached in Sudbury. He became well-known in the local track community.

5The complainant was born in August 1967. She came from a small town outside Sudbury, where she lived with her parents and a younger brother. The complainant started running in Grade 3 and defined herself through her sport. She attended a Sudbury high school starting in Grade 9.

6The complainant met the accused during the summer before she started Grade 9, when she was 14 years old. She joined a track club and the accused became her coach. Towards the end of the complainant’s first summer training with the accused, he gave her a picture of himself, causing the complainant’s mother concerns. During Grade 9, the complainant spoke often by phone with the accused, while he was at school in the United States.

7The summer after Grade 9, the complainant practiced with the accused and other sprinters at the track club. She had dreams of going to the Olympics. The accused told the complainant that she had a lot of potential, and she thrived on his compliments.

8In Grade 10, after the complainant turned 16, the accused remained her coach. The complainant’s relationship with the accused grew closer and she gradually became estranged from her family, as her parents were not supportive of the complainant continuing to train with the accused. The accused met the complainant often at her school, where they hung out and talked. The complainant confided in the accused about issues she was having with her mother.

9The complainant “ran away from home” in the spring of 1984 before she turned 17. She had had a big fight with her parents, who were not intending to let the complainant be coached by the accused. She called the accused to pick her up. He came in a car with his father, and they collected the complainant and drove her to their house in Sudbury. The complainant did not tell her mother where she was and remained with the accused’s family for about three months in a spare bedroom.

10Shortly after the complainant left the accused’s home, the accused found the complainant a room upstairs at an inexpensive Sudbury hotel, where she remained for more than a year, living on welfare. The accused visited her there. The complainant turned 18 before entering Grade 12 in 1985. Shortly after that, she and the accused were married at the Sudbury Courthouse.

11The complainant continued in high school, kept running and lived with the accused’s family, but did not tell anyone about their marriage, at the accused’s direction. She graduated high school in 1986.

12The allegation of sexual assault involves a clandestine meeting between the accused and the complainant at the President Hotel in downtown Sudbury in Grade 10 before the complainant left her parents’ home.

13One evening in the fall of Grade 10 there was a party that the complainant wanted to attend in Sudbury. The complainant got permission from her mother to stay at a friend’s house in Sudbury overnight. She did not go to the party. Instead, she met up with the accused, with whom she felt comfortable. The complainant went with the accused to the President Hotel.

14In the hotel room the complainant stopped feeling comfortable and did not want to be there. She was sitting on the edge of the bed and became scared and nervous. She froze. The accused took his own clothing off and removed the complainant’s pants. The complainant started to cry. The accused put on a condom and lay the complainant back on the bed. From beside her, the accused put his fingers in the complainant’s vagina, telling her that it was going to be “ok”, and that he had to get her lubricated. The accused got on top of the complainant and spread apart her legs, which were stiff as boards. The accused put his penis in her vagina, while the complainant was telling him that she could not do this, that it hurt. The accused did not stop; he tried to kiss the complainant, but she turned her head. The complainant thought that the accused ultimately ejaculated. Afterwards, the complainant took a cab back to her friend’s house in the south end of Sudbury.

The assault charges

15Again, context is important.

16After the complainant’s high school graduation, the complainant and the accused took a small apartment on Regent Street, Sudbury, where the two lived for about two years. The complainant described her marriage with the accused as “not good.” She generally did what she was told by the accused. From Regent Street, in 1989 or 1990, the couple moved to a secure building on Brodie Street. There they lived first in a basement apartment, and then moved to an upstairs apartment.

17During the marriage, the complainant felt isolated and controlled. The evidence at trial offered several examples of the accused’s controlling or humiliating treatment of the complainant. Among them were the following: The accused called the police on the complainant, his wife, more than once to emphasize to her his control over her and to humiliate her. There was no evidence that she was ever charged, and the reasons for the police calls were trivial. It was also the accused’s habit to make repeated calls to the complainant’s parents’ phone when the complainant was there and hang up if anyone but the complainant answered. This conduct frightened the complainant and signalled the end of the visit, and further isolated the complainant from her family.

18Throughout most of their marriage, the complainant kept running. The accused remained her coach and arranged attendance at meets. The complainant loved running and continued to have dreams and aspirations of success. The complainant’s Olympic dream only ended after 1988, when she got injured and knew “that it wasn’t going to happen.”

19Ultimately, the complainant left the accused and the two were divorced after a year of separation. The complainant then went to university, graduated, and remarried.

Hand incident on Regent Street

20An incident occurred in the summer of 1988 while the couple was living in the apartment on Regent Street. The couple were financially strained, and they got into arguments over trivial things.

21During one argument, the accused grabbed the complainant with both hands by the shoulders and threw her down four steps to the landing next to the screen door of the apartment, which held a glass panel. The complainant landed on her side, and in bracing for impact her hand went through the glass in the door. She was badly cut, and pieces of glass remained in her hand. The complainant was bleeding badly, and wrapped her hand in a towel, but the accused would not initially drive her to the hospital. The complainant began walking to the hospital. The accused came up in his car behind her, honking his horn. Eventually, the complainant got in the car, and the accused drove her to the hospital.

22The complainant received a transfusion and had to have surgery to repair the tendon in her ring finger. The complainant remained in hospital a few days and transferred to a different hospital site for surgery. She still has a three-inch scar on her palm.

Locked out naked

23There were two incidents from the marriage in which the accused assaulted the complainant, forcing her out of their home naked and locking her out.

24The first took place when they were still on Regent Street.

25During a trivial argument on a frigid winter night during which the accused was screaming at the complainant about something he felt she had done wrong, he told her to remove her clothes and forced her to do so when she refused. Once she was naked, the accused pushed the complainant out the apartment door and down two steps into the snow beyond, while the complainant pleaded with the accused not to kick her out.

26The accused then closed and locked the door, leaving the complainant outside in the dark. She banged on the door to be let back inside. From inside, the accused turned the outside light on and off. The complainant felt frozen and embarrassed. The complainant huddled against the door, her feet turning blue from the cold. Eventually the accused opened the door and allowed her back in. The complainant apologized for whatever she had done, just wanting it to be over.

27The second such incident took place on Brodie Street, when the couple were living in their second-floor apartment, a year or two after they left Regent Street. The complainant believed that it took place in 1990 or 1991 in the winter or early spring, as she recalled her bare feet getting wet from the water melting off people’s boots.

28Again, during an inconsequential argument, the accused yelled at the complainant to take off her clothes. Although she initially said “no,” she was too scared just to walk away from the accused, so she complied. Once the complainant was naked, the accused pushed her outside into the hallway through the apartment door. The accused then started banging on the inside of the door, and would not let her back in.

29The complainant went into the stairwell and hid against the wall behind the solid open door that separated the hallway from the stairwell. Two groups of people came upstairs, some 5 or 6 people altogether, apparently unable to see the complainant behind the open door. The complainant was locked outside of the apartment naked for approximately an hour, while the accused occasionally banged on the door from the inside. Eventually, the accused opened the door and allowed the complainant back inside.

30In my trial judgment I found that during the course of conduct relating to these assaults the accused flicked the outside light on and off or banged on the door from the inside to inspire humiliation in the complainant at the thought that the attention of passersby would be drawn to her naked helplessness. Throughout their marriage, the accused was motivated by a desire to control the complainant and compel her obedience.

Pre-sentence report and defence evidence

31A pre-sentence report was ordered and prepared.

32The accused describes a childhood in a loving home, but in a city where he was subjected to unfair treatment because of his race. He suffered bullying and discrimination in primary school, but things improved in high school, where the accused was popular.

33He has the support of his eldest sister, though his parents predeceased him. He has had three significant relationships but has no children.

34In the accused’s view, the problems that he had with the current complainant were caused because they “married too young.”

35The accused has worked to support himself, both in university and after, when he returned to Sudbury. He formed a music company which was doing well until his arrest in 2017. He has coached since the age of 18 and has been a member of various coaching associations. He has always encouraged his athletes to perform community service. Since being charged, he has experienced significant financial challenges, as he has had difficulty finding work because of the nature of the charges. He is now on social assistance.

36The accused has been subjected to death threats, racial insults and harassment as a result of the charges. Counsel described incidents in Sudbury in which the accused was called a rapist along with other expletives. He has been chased and shoved to the ground by persons who called him racist epithets and a rapist. As a result of a June 2019 assault he suffers from tinnitus and constant head pain.

37A September 2018 letter from clinician Nicole Brault offers a lengthy description of abuse and assaults the accused had suffered up to that point, and the psychological harm that such things were causing him. Dr. Mikael Levesque provided a letter describing the physical harm caused to the accused by the June 2019 assault that has left the accused with tinnitus in his left ear and jaw pain. The doctor also reports that the accused suffers from anxiety and depression and takes medication for joint pain and to help him sleep. The accused had suicidal thoughts after his arrest.

Victim Impact

38The complainant read her victim impact statement to the court. Although an expression of victory over the effects of a difficult period in her life and the abuse she suffered at the hands of the accused, the statement also exposes how deeply the complainant has been affected by what she suffered. She states that the accused took away her youth but did not get her life.

39The complainant speaks in terms of how the accused had terrified her, and hurt her, physically, emotionally, and mentally. She speaks of how the accused manipulated and humiliated her. The complainant catalogues her life’s successes to balance them against the harm that the accused did her, and to reflect on the accused’s image, now tarnished by these proceedings.

Positions of the parties

The defence positions

40The parties focused most of their attention on the most serious of the charges, the sexual assault. The defence proposes three sentencing options:

41First, because the case is so unusual, it submits that a sentence of three years probation could be appropriate. The defence points out that decades have passed since the offences were committed, during which the accused has led a productive and pro-social life. The defence submits that there was no “gratuitous violence” in the sexual assault and proposes that the pre-sentence report be considered a positive one.

42The defence asks the court to consider the nearly four years that the accused has spent on bail without breach, and under strict conditions. It asks the court to take into account the extra-judicial sanctions to which the accused has already been subjected, in terms of the racism, harassment, threats, and assaults already inflicted upon him while out on bail. It points to the notoriety already suffered by the accused; this has taken a toll on his professional life, and even his ability to find any employment.

43In R. v. H.S., 2014 ONCA 323, at paras. 52-55, the Court of Appeal discussed the effect on sentence of the passage of time since the time of the offence, noting that after a significant gap, the offender is not the same man who committed the offence. The court concluded that the passage of time may diminish the need for specific deterrence, and the rehabilitative prospects of a blameless life can, if remorse is present, reduce the need for a stern sentence. However, the mere passage of time has no effect on general deterrence and denunciation, which are the prime sentencing factors for sexual violence against children.

44In this case there is no indication of remorse, ordinarily an important mitigating factor. It is no answer to submit that the accused’s acquittal of two charges justified going to trial on five, or the need to preserve the possibility of appeal prevents any expression of remorse to the court, the complainant or the probation officer who prepared the pre-sentence report. Indeed, the pre-sentence report is of little assistance, as the probation officer was left unable to engage the accused about risks of reoffending that might be revealed by the accused’s attitude towards the offences, and the best means of modifying them.

45Instead, the accused told the probation officer who prepared the report that he would not have done what he has been convicted of because it could have jeopardized his professional accomplishments. It is worth noting that he did not say that he would not have committed the offences because he loved the complainant, and never wanted to hurt her, and would not treat a woman or his wife that way. Even in his own trial evidence the accused admitted that he was a flawed husband. Is there really no room for him to acknowledge the terrible pain experienced by the complainant?

46I do not see that a period of probation could at all serve as an appropriate sentence where general deterrence and denunciation must figure prominently in the sentencing decision.

47If custody is required, the defence would propose that it be in the 6 to 12-month range. In addition to the factors summarized already, the defence suggests that there was no pattern of abuse involved in this case, but rather several isolated incidents. To support this range, the defence relies on R. v. M.R., a February 23, 1998 decision of the Ontario Court of Appeal, in which the court reduced a sentence of 15 months on a domestic sexual assault cause bodily harm charge to six months custody. The facts of the offence as an isolated act, the plea of guilt by that accused, and the request for leniency for the accused by the victim of that sexual offence, who was the accused’s spouse and not a child over whom the accused held a position of trust and authority, all distinguish that case from the circumstances of the sexual assault here.

48The defence suggests that the fact that in this case the complainant married the accused and remained with him for years after the sexual assault somehow tells against any abusive undercurrent to the marriage other than the isolated assaults of which the accused has been found guilty. This submission ignores the accused’s controlling conduct and the deliberate humiliations inflicted upon the complainant throughout their marriage. Abuse there was aplenty, even if not all of it can be categorized as criminal.

49The low-reformatory range of sentence suggested by the defence is not appropriate for the offences before this court.

50The defence offered as its second alternative a sentence in the range of 21 to 48 months custody. This range is based upon the decision in R. v. Smith, 2011 ONCA 564, in which Epstein J.A. at paragraph 87 sets out that in cases involving forced intercourse with a spouse or former spouse, sentences range generally between 21 months and 4 years. The defence would recommend a sentence at the lower end of this range and relies on the mitigating factors I have already discussed.

51The defence further relies on para. 58 of the decision in H.S., in which the Court of Appeal indicates that the accused’s lengthy time on bail awaiting the outcome of the case must be taken into account in determining an appropriate sentence. In this case, the defence submits that that requires the court also to account for the length of bail and the extra-judicial punishments that the accused has suffered while he has been on bail: R. v. Downes (2006), 2006 3957 (ON CA), 79 O.R. (3d) 321 (C.A.), at para. 33. The defence also submits that the tone of the victim impact statement is somehow inappropriate, as it focuses more on the complainant’s successes, and not the harm caused her by the accused.

52The difficulty with the defence position based on Smith, of course, is that it relates to spouses and former spouses, and not to the victimization of children who later become spouses, which was my finding in this case.

The Crown position

53The Crown proposes a total sentence of five years incarceration, comprising a sentence of four years custody on the sexual assault, a year consecutive on the assault causing bodily harm, and one year concurrent on the simple assault conviction.

54The Crown also proposes ancillary orders, as follows, with which the defence agrees. These orders will be made:

a. A 20-year order for registration as a sex offender, which is required by s. 490.013(2)(b) of the Criminal Code;

b. A firearms prohibition pursuant to s. 109(2) of the Criminal Code for a period of ten years;

c. An order for provision of a sample of the accused’s bodily substance for analysis and entry into the National DNA databank, which is mandatory on the sexual assault and assault cause bodily harm convictions.

Deterrence and denunciation in child sexual assault and domestic violence

56The Supreme Court of Canada’s decision in R. v. Friesen, 2020 SCC 9 summarizes essential factors for consideration in cases of sexual offences committed against children. In paragraph 42 of that decision, the Court noted that “[p]rotecting children from wrongful exploitation and harm is the overarching objective of the legislative scheme of sexual offences against children in the Criminal Code.”

57Many relevant important principles flow from that decision, some of which I will set out:

a. Courts must focus on the emotional and psychological harm done to children, and not just to physical harm (para. 56). Such harm can interfere with a child’s “self-fulfillment and healthy and autonomous development to adulthood” (para. 58). The court makes efforts not to stereotype victims of child sexual abuse as forever broken. “Many victims go on to live healthy and meaningful lives with fulfilling and loving relationships” (para. 59).

b. “There is an innate power imbalance between children and adults that enables adults to violently victimize them” (para. 65). Children are most vulnerable and at risk at home and among those they trust (para. 66).

c. “[C]ourts need to take into account the wrongfulness and harmfulness of sexual offences against children when applying the proportionality principle” (para. 75). Courts must recognize the inherent wrongfulness of sexual misconduct against children, and the potential and actual harm that flows from it (para. 76). Sexual assaults against children always involve inherent violence to the child “even if it is not accompanied by additional physical violence and does not result in physical or psychological injury” (para. 77). “It is inherently exploitative for an adult to apply physical force of a sexual nature to a child”, and “Courts must always give effect to the wrongfulness of this exploitation in sentencing” (para. 78).

d. “We would emphasize that courts should reject the belief that there is no serious harm to children in the absence of additional physical violence” (para. 82). “Even if an offender commits a crime that fortunately results in no actual harm, courts must consider the potential for reasonably foreseeable harm when imposing sentence” (para. 84). Victim impact statements will usually provide the best evidence of the harm that the victim has suffered (para. 85).

e. “Intentionally applying force of a sexual nature to a child is highly morally blameworthy because the offender is or ought to be aware that this action can profoundly harm the child” (para. 88). “Offenders recognize children’s particular vulnerability and intentionally exploit it to achieve their selfish desires” (para. 90).

f. “We would add that substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim” (para. 114).

g. Regarding abuse of a position of trust, “a trust relationship can progress along the spectrum [of positions of trust] over time” (para. 125). “Any breach of trust is likely to increase the harm to the victim and thus the gravity of the offence” (para. 126). “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” (para. 129). Abuses of a position of trust should attract a lengthier sentence. “[C]ourts must also be particularly careful to impose proportionate sentences in cases where the victim is an adolescent” (para. 136).

58Assaults committed in domestic circumstances also call out for denunciation and deterrence: R. v. Menary, 2012 ONCA 706, at para. 7. As long ago as R. v. Inwood, 1989 263 (ON CA), [1989] O.J. No. 428 (C.A.), a case nearly contemporaneous with the domestic abuse in this case, Howland C.J.O. stated:

“This court has acted on the principle that where there is a serious offence involving violence to the person then general and individual deterrence must be the paramount considerations in sentencing in order to protect the public. In my opinion, this principle is applicable not only to violence between strangers but also to domestic violence. Domestic assaults are not private matters, and spouses are entitled to protection from violence just as strangers are.”

Discussion

59In this case, over a period of two years from their first meeting, the accused exploited the complainant’s vulnerabilities, making her easy prey for sexual assault. The defence argues that there was no grooming in this case, but I do not need to decide that issue. For there was very clearly exploitation.

60An adult, the accused exploited the complainant’s youth, inexperience and naivete. The complainant was entrusted to the accused’s care as coach when she was 14, from a small town outside Sudbury, and socially inexperienced. The complainant’s focus was on her desire to excel at her sport. The accused was her coach, and without any doubt in a position of trust. He established a deep relationship with the young complainant by making himself a trusted confidant, and a source of refuge for the complainant. He spoke with her regularly by telephone and at her school, and about far more than running.

61Although the complainant’s mother grew to distrust the accused’s intentions, the complainant was drawn in and encouraged to isolate herself from family and friends until she was almost entirely socially dependent on the accused. He remained the complainant’s coach, the focus of her aspirations and dreams. He exploited her admiration for him, her desire to achieve her own dreams, and her growing dependence on him.

62The sexual assault at the President Hotel was entirely predictable and entirely wrong and terribly harmful. The accused has denied being violent with the complainant, but he did not care that her participation was the result of exploitation, and he ignored the reality that the teenager with whom he was engaging in sexual intercourse was not consenting to that act. The effects on the complainant were not obvious, but they were catastrophic and lifelong. The absence of “gratuitous violence” cannot disguise this fact.

63Although the act was unwanted, the intimacy of the sexual assault drew the still youthful complainant even further into the accused’s orbit. The accused remained the complainant’s coach. She left her parents’ home and moved in with the accused in his parents’ home. When she left that home, the accused found a place for her in a local hotel. The two married shortly after the complainant turned eighteen. The accused’s friends served as witnesses, and the complainant abided by the accused’s direction to divulge their marriage to no one.

64The marriage was born in exploitation, control, and social isolation. When the accused told the probation officer who was preparing the pre-sentence report that the cause of his separation from the complainant was that “we married too young,” he neglected to add that that was his doing, brought about by his exploitation of his coaching relationship with the complainant. A marriage born out of exploitation is not destined to be a happy one, particularly for the exploited party.

65The exploitation continued in the marriage, and because he now wore the title of husband, and not simply coach, the accused modulated his conduct more towards dominance and social isolation of the complainant. The accused controlled the complainant’s access to her family through such strategies as interfering telephone calls during her visits with them. Police contact with the complainant on calls by the accused were intended to humiliate her and induce compliance.

66The domestic assaults came about during verbal arguments in which the accused resorted to violence and again, humiliation and control. Although the physical harm caused to the complainant’s hand when the accused threw her down the stairs in their home was significant, the emotional harm caused by the simple assaults is incalculable. The assaults themselves involved simple removal of the complainant from their apartment. But the accused’s deliberate conduct in forcing the complainant to strip and putting her out naked into a public hallway or into a frozen Sudbury winter night was sadistic and calculated to humiliate and break the complainant. These were not isolated acts, but the criminal part of a campaign of domination.

67In her victim impact statement, the complainant rightfully complains that the accused took away her youth. The complainant felt terrorized by the accused, and her focus on the pain that he caused her and her pride at overcoming it speaks to how deeply the accused’s misconduct affected her. She cannot be faulted and should be celebrated for showing that she has managed to rise above her victimization.

68Still, various other factors must be taken into account and moderate the Crown’s sentencing position. At the time of the sexual assault, the accused was himself barely out of his teens, and is to be viewed as a first offender, at least for the sexual assault. Though still a first offender for the domestic assaults, he had more years behind him, and should have had more maturity. For most of his adult life, after his marriage with the complainant ended, the accused appears to have led an unblemished life.

69The accused has been on bail for some four years, and has been subjected to racially charged, abusive, threatening and assaultive conduct from persons in the community. As a result of an assault, the accused suffers from tinnitus and head pain, anxiety and depression. Certainly his extended time on bail, most recently as a result of court limitations during the pandemic, has magnified the negative effects on his career of charges of this kind and his difficulty in finding employment, and can be taken into account on sentencing: H.S., at para. 39.

70But I see no evidence of remorse, and the accused presents as having no insight into any of the harm that he caused to the complainant. The accused has chosen to rely on counsel’s advice and say nothing about the offences, in some ways nullifying the value of the pre-sentence report. He still asserts his innocence, as is his absolute right. Meanwhile, the complainant has testified at preliminary inquiry and trial and been forced to relive what she suffered from the accused. Remorse, that most mitigating factor, is entirely absent, but I caution myself that its absence never becomes an aggravating factor.

71General deterrence and denunciation must be the predominant sentencing factors in this case, both with respect to the breach of trust sexual assault and the domestic violence. Given my knowledge that the accused is shortly to be sentenced for a sexual offence committed much more recently, even though he has lived most of the intervening years offence-free, and his apparent absence of any remorse, I conclude that there is also still a place for specific deterrence in this sentencing.

72Although no submissions were made in this regard, I also recognize that we are still in the midst of a pandemic which requires all courts to moderate sentences insofar as possible to ensure that the individual offender, the prison population, and the Canadian community at large are not overly or unnecessarily exposed to the dangers of COVID-19.

Conclusion

73I find that a fit and appropriate sentence for Mr. Case, on the charge of sexual assault, in all the circumstances of this case, is 36 months in the penitentiary. Mr. Case will be sentenced to nine months jail consecutive on the charge of assault. He will receive nine months concurrent on the conviction for assault causing bodily harm.

74While the accused is in custody, Mr. Case is ordered not to communicate with the complainant by any means, directly or indirectly, pursuant to s. 743.21 of the Criminal Code.

75On the charge of sexual assault, there will be a 20-year order requiring Mr. Case to register as a sex offender, pursuant to s. 490.013(2)(b) of the Criminal Code, and a firearms prohibition pursuant to s. 109(2) of the Criminal Code, for ten years.

76Mr. Case will provide a sample of his bodily substance for analysis and entry into the National DNA databank on the primary designated offences of sexual assault and assault causing bodily harm.

The Honourable Mr. Justice A.D. Kurke