Superior Court of Justice
HIS MAJESTY THE KING
-v-
J.C.
HYBRID PROCEEDINGS VIA ZOOM
BEFORE THE HONOURABLE MR. JUSTICE C. CONLAN
on October 27, 2023 at WALKERTON, Ontario
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTIONS 486.4 OF THE CRIMINAL CODE OF CANADA, ORDERED BY HER WORSHIP H. CHARYNA SEPTEMBER 4, 2018
APPEARANCES: H. Adair Counsel for the Provincial Crown K. Byers Counsel J. C.
FRIDAY OCTOBER 27, 2023
THE COURT: I would like to begin by thanking counsel Ms Adair for the Crown and Mr. Byers for the defence for their hard work in resolving this case and for their very helpful submissions on sentence. This is a difficult case and both counsel have worked hard leading up to today. I order an expedited transcript to be prepared of these oral reasons for sentence and upon my review and approval of the transcript, I will authorize copies to be distributed to Ms Adair and to Mr. Byers.
Reasons for Sentence
Conlan, J. (Orally)
PART I – THE FACTS AND THE FINDING OF GUILT
Today, J. C. entered a guilty plea and was found guilty on count one of the indictment, an allegation that he, between the 15th and 16th day of September 2018 at the Municipality of Kincardine did for a sexual purpose, touch J.P., a person under the age of 16 years, directly with a part of his body, specifically his penis, contrary to Section 151 of the Criminal Code.
The facts succinctly put, are as follows. Prior to the offence date, members of the victim’s family and the members of the offender’s family were long time and close friends. On the 15th of September 2018, members of the two families and others gathered together for a social event involving alcohol and mini putt.
At the time, the victim of the offence, J.P., was just 15 years old. In the very early morning hours on September 16, 2018, J.C. was found to be in a bedroom with the victim, J.P. J.P. was nude and lying on the bed. J.C. was partially undressed and on the floor.
The victim J.P. disclosed not long afterwards that J.C. had engaged in sexual intercourse with her. The police were contacted promptly and without much delay J.C. was arrested.
PART II – THE PRINCIPLES OF SENTENCING
I agree with the Crown, Ms Adair, that the primary principles of sentencing at play in this case are denunciation and general deterrence. Specific or individual deterrence is a factor, however given J.C.’s background I am less concerned about specific deterrence than I am about denunciation and general deterrence.
Of course, rehabilitation is also an important factor in this case, particularly given that J.C. is a first offender. This case involved a joint submission put forward by two experienced counsel. The law on joint submissions is well settled. In the decision of R. v. Cook, 2016 SCC 43, 2016 (2) SCR 204 at Paragraph 32, Justice Moldaver held that:
Judges ought not to depart from a joint submission on sentence unless the proposed sentence could bring the administration of justice into disrepute or is otherwise contrary to the public interest.
In R. v. Fuller, 2020 ONCA 115 the Court of Appeal for Ontario held that, “Joint submissions on sentence should only be rejected in ‘rare cases.’” That is from Paragraph 16.
PART III – THE AGGRAVATING FACTORS ON SENTENCE
In my view the chief aggravating factors in this case include but are not necessarily limited to the following. First, this offence was committed in the context of a lengthy and close relationship and friendship between the P. and C. families.
Second, this offence involved the victimization of a 15-year-old girl in circumstances that included more than simply touching for a sexual purpose.
And third, a significant aggravating factor in this case is the devastating impact that the offence has had on the victim, J.P., and members of her family, as spoken about quite eloquently in J.P.’s mother’s Victim Impact Statement.
The impact on J.P. and the family has included a loss of a feeling of trust in others, a sense of betrayal by a close family friend, a member of the P. family’s inner circle.
Sadness, grief, hopelessness, sleeping troubles for both J.P. and other members of the family, difficulties in school for J.P., thoughts of self harm on the part of the victim, J.P., and mental health difficulties for the victim J.P. These are some of the consequences of J.C.’s criminal act.
PART IV – THE MITIGATING FACTORS ON SENTENCE
There are mitigating factors in this case, and they include but are not necessarily limited to the following. First and foremost, J.C.’s guilty plea. The jurisprudence tells us that a guilty plea, in and of itself, is a significant mitigating factor on sentence. It is an acceptance of responsibility by the offender, and it is a sign of remorse on the part of the offender.
In this particular case, the guilty plea by J.C. saves court resources, more important, it saves J.P. and members of J.P.’s family from having to endure the very difficult experience of a trial, particularly one that might be held in front of a jury.
We know from the Victim Impact Statement that the preliminary inquiry alone was very stressful for J.P. and for the family and a trial would be even more stressful and difficult and painful for J.P. and her family.
Next in mitigation there is the fact that J.C. is a first offender and comes before this court without any criminal history.
And third, the letters filed on behalf of J.C. do serve to mitigate the sentence that would otherwise be imposed in that those letters indicate that J.C. does take this matter very seriously and has attempted to make changes in his life that hopefully will avoid him being placed in any circumstance like this one again in the future.
One such change is J.C.’s recognition that he is not someone who ought to consume and certainly not someone that ought to consume regularly and to excess, alcohol.
The letters have been written by numerous persons; J.C.’s daughter B., his mother Ms P., his wife K., his brother R.C., his mother-in-law Ms L. and multiple long-time friends and or coworkers. The letters are helpful to the Court along with all of the other circumstances of the offence and those of the offender.
And finally in mitigation, I do take into account J.C.’s statement to the Court read into the record today by Mr. Byers. I recognize that members of the victim’s family and members of the public may see such a statement as self-serving, and I am sure that there is some self-serving purpose to the statement. However, I have been doing this a long time and there are some statements given by offenders that are more thoughtful than others. This is one where J.C. did not appear to make excuses for his egregious conduct towards J.P. and J.P.’s family but rather, he appears to have accepted full responsibility for his criminal conduct.
PART V – THE SENTENCE OF THE COURT
I will accept the joint submission on sentence put forward by counsel. I do not see this as a close call, in terms of whether to accept the joint submission. I see this joint submission as being entirely reasonable in the circumstances, taking into account the facts, the circumstances of the offender, and the aggravating and mitigation factors. In no way would this joint submission on sentence bring the administration of justice into disrepute and I find that in no way is this joint submission on sentence contrary to the public interest. Thus, I will impose the sentence that has been jointly submitted by counsel.
First, the Victim Fine Surcharge is waived in the circumstances of this case given the sentence of imprisonment for J.C.
Next, in terms of the ancillary orders, there is an order made that J.C. shall comply with the requirements of the Sex Offender Information Registration Act. The length of the order being made is for a duration of 20 years.
Next, there is a primary DNA order issued. The sample of J.C.’s DNA will be taken today.
Next, there is a Section 109 Criminal Code firearms and weapons prohibition order for a period of ten years and life in accordance with the two subsections. Specifically, J.C. is prohibited from possessing any firearm other than a prohibited firearm or restricted firearm and any crossbow, restricted weapon, ammunition, and explosive device for a period beginning on the day this order is made and ending ten years after his release from imprisonment.
Further, J.C. is prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.
There is a forfeiture order for all firearms possessed by J.C. and J.C. shall surrender any license or licenses, any permit or permits including a Possession and Acquisition License for firearms. The forfeiture order and the surrender order take effect sixty calendar days after today.
Next, there is an order made under Section 161(1) of the Criminal Code, for a duration of five years. Specifically, the order is made under Section 161(1) Paragraph A of the Criminal Code, prohibiting J.C. from attending a public park or a public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present or a daycare centre, school ground, playground or community centre.
There is an exception to that order where J.C. is in the immediate presence of an adult person who is aware of the sentence imposed by the Court on today’s date.
In addition to Paragraph A, the order under Section 161(1) is also made under Paragraph C, prohibiting J.C. from having any contact, including communicating by any means with a person who is under the age of 16 years unless J.C. does so under the supervision of a person whom the Court considers appropriate and the person that the Court considers appropriate at this time are, is K.C.
There are two exceptions to the order being made under Section 161(1)(c); the first exception relates to a child of J.C. – so, the prohibition in 161(1)(c) does not include a child of J.C., regardless of whether there is another person there or not and the other exception to the order under 161(1)(c) is where J.C. is in the immediate presence of a parent of the person who is under the age of 16 years.
Those are the ancillary orders imposed by the Court.
This Court sentences J.C. to a period of imprisonment of two years less one day in length. While serving the sentence of imprisonment, pursuant to Section 743.21(1) of the Criminal Code, J.C. shall not have any contact or communication directly or indirectly with J.P. or a member of her family including C., N1, and N2.
Following the period of imprisonment J.C. shall adhere to a period of probation for three years. All of the statutory terms apply. In addition to the statutory terms, J.C. shall have no contact or communication, directly or indirectly with J.P. or a member of her family, including C. N1 and N2.
J.C. shall not be within a 200-metre radius of any place known to him to be the place of residence, employment, or school of J.P. or a member of her family including C., N1 and N2.
And J.C. shall not be within 200 metres of any place known to him to be frequented by J.P. or a member of her family, including C. N1 and N2. And J.C. shall not be within 200 metres of the person of J.P. or a member of her family, including C. N1 and N2.
In addition, J.C. shall attend for any counseling or treatment as recommended by his probation officer and not leave that program of counseling or treatment without the prior written permission of the probation officer.
In addition, in order to monitor his compliance with the probation order and in particular the counseling and treatment provision, J.C. shall sign any necessary releases of information demanded of him by either the probation officer or the third-party service provider.
THE COURT: Before I ask J.C. whether he understands these orders, is there anything else?
MR. BYERS: I just have one clarification, with respect to the place of employment of N2...
THE COURT: Oh, yes.
MR. BYERS: ...I’d asked in my submission, so I can advise Your Honour that the buildings are, if, same buildings are there, they work in the same places, their like two kilometers apart. But it’s the same employer so I just wonder if you could as far as the employment is concerned, instead of place of employment, within 200 metres applying to the place of employment, if that could be ordered somehow.
THE COURT: Ms Adair, do you have any comment on that?
MS ADAIR: I would say Your Honour that it may be easier to just, to simply put in an exception – except with respect to N2, he can be on the same, at the same employer but not within 200 meters of his employment. So, I think it may be easier addressed as an exception pertaining specifically to N2 Your Honour so I would say that and then beyond that Your Honour the only other thing I neglected to mention to you was date to report, to report to probation within two days of his release and given that I had asked for the counseling that he reside at an address approved of by the probation officer, just simply so that they can maintain contact with him but I apologize Your Honour for the, leaving those off.
THE COURT: In terms of the probation order, J.C. shall report to a probation officer within two working days of his release from custody and thereafter as directed by the probation officer. And as well, there is a condition of the probation order that J.C. shall reside at a place approved of by the probation officer and not change that residence without the prior written permission of the probation officer.
On the point raised by Mr. Byers, I think it will be best for enforcement purposes to state the issue as an affirmative statement in the probation order, rather than as an exception. So, Madam Registrar, when the probation order speaks about the 200-metre radius provision, there shall be a sentence added at the end which says this condition of the probation order does not prohibit J.C. from working for the same employer as N2.
MR. BYERS: I think that might technically be a problem but I think you, if that’s there, people will understand what you meant.
THE COURT: So, that’s the way I will deal with that issue, is there anything else that I left out before I ask J.C. some questions?
MS ADAIR: I think you’ve covered it nicely. Thank you, Your Honour.
MR. BYERS: Thank you, Your Honour.
THE COURT: J.C., stand up please sir. I have to ask you these questions. Do you understand the sentence of imprisonment that I imposed?
J.C.: I do.
THE COURT: Do you understand the order that you not have any communication with certain persons while you are serving the sentence of imprisonment?
J.C.: I do.
THE COURT: You must obey that order, if you do not you could be charged with a criminal offence of breaching the order, and if found guilty you could go to jail for that, do you understand?
J.C.: I do.
THE COURT: Do you understand the sex offender registry order that the Court made for twenty years?
J.C.: I do.
THE COURT: You must obey that order and all of the requirements of that Act or else you could be charged with a criminal offence of breaching the order and you could go to jail if found guilty. Do you understand that?
J.C.: Yes, sir.
THE COURT: Do you understand the DNA order that the Court made?
J.C.: Yes.
THE COURT: It is a sample of your blood that you will provide to the police. You must cooperate with the police in providing that sample. If you do not, you could be charged with a further criminal offence of breaching that order and you could go to jail if found guilty, do you understand that?
J.C.: Yes.
THE COURT: Do you understand the Section 109 Criminal Code firearms and weapons prohibition order?
J.C.: Yes.
THE COURT: You must obey that order, if you do not you could be charged with a further criminal offence of breaching that order and you could go to jail if found guilty, do you understand that?
J.C.: Yes.
THE COURT: Do you understand the order made regarding the forfeiture of the firearms and the surrender of your PAL and any other licenses or permits that you have?
J.C.: Yes.
THE COURT: You must comply with that order. There was some extension on the effective date of that order provided, 60 days, but you must comply with that order. Failure to so could mean that you are charged with a further criminal offence and if found guilty you could go to jail for that, do you understand?
J.C.: Yes.
THE COURT: Do you understand the three-year probation order? And the terms and conditions that were imposed which probation order will commence after your release from custody and run for three years. Do you understand that order?
J.C.: Yes.
THE COURT: You must obey all of those conditions of the probation order if you do not, you could be charged with breach of probation which is a criminal offence, and if found guilty of breach of probation you may go to jail for that, do you understand?
J.C.: Yes.
THE COURT: If while on probation you want to vary or amend any condition of the probation order, you must speak with your probation officer about that, do you understand?
J.C.: Yes.
THE COURT: Do you understand the Section 161 Criminal Code order that I made with regard to public parks and public swimming areas and contact with persons under the age of 16 years?
J.C.: Yes.
THE COURT: You must obey that order, if you do not obey that order you could be charged with a further criminal offence and if found guilty of breaching that order you could go to jail as the sentence, do you understand that?
J.C.: Yes.
THE COURT: Those are all of the aspects of the sentence that were imposed. This is your opportunity to ask me any questions if you are uncertain about any part of the sentence or if you want some clarification on something.
J.C.: Nothing.
THE COURT: You may have a seat sir. So, Madam Registrar here are these draft documents back, thank you. Once you have the documents finalized, before you give them to me for signature, I would appreciate you showing them to Mr. Byers and Ms Adair so they can have a look and satisfy themselves that they properly reflect the sentence that was imposed.
MADAM REGISTRAR: Yes.
THE COURT: I would like to close where I began and thank Ms Adair and Mr. Byers for their hard work in resolving this case and for their very competent submissions today. I would like to wish J.C. the best rehabilitation possible while you are serving your sentence. I understand that this process has been very difficult for your family as well.
And to the P. family, I would like to extend through you to J.P. my best wishes in terms of her continuing to deal with what she experienced, best wishes for her education, and I hope that the P. family is able to find some degree of peace and move on as best as it can, knowing that you can never totally move on, but move on as best as you can from what happened here. Thank you.
COURT SERVICES OFFICER: All rise.
MADAM REGISTRAR: This court stands in recess until 2:00 P.M.
FORM 3
ELECTRONIC CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2)) Evidence Act
I, Lorelei Bonham, certify that this document is a true and accurate transcript of the recording of R. v. J.C., in the Superior Court of Justice held at Walkerton, Ontario, October 27, 2023, taken from Digital Recording Number, 0311_CRTRM#1_20231007_094800_10_CONCLANC, which has been certified in Form l.
March 2, 2024 Lorelei Bonham
Date ACT #8639303749 Ontario, Canada Province of Signing
A certificate in Form 3 is admissible in evidence and is proof, in the absence of evidence to the contrary, that the transcript is a transcript of the certified recording of evidence and proceedings in the proceeding that is identified in the certificate.