Court File and Parties

Court File No.: CR-22-056 Date: 20240610 Ontario Superior Court of Justice

Between: His Majesty The King And: L.F., Defendant

Counsel: Phyllis Castiglione for the Crown Andrew Furgiuele for the Defendant

Heard: April 12, 2024.

WARNING: An order has been made under s. 486.4 of the Criminal Code restricting publication of any information that could identify a complainant or a witness in this proceeding.

Reasons for Sentence

[1] L.F. entered a guilty plea before me on January 26, 2024 to five counts: indecently assaulting four young females, L.C., C.B., R.R., and J.M., and assaulting a young male, M.L. The indecent assault offences took place over a period between September 1977 and June 1983. L.F. was, during that period, an elementary teacher. The victims were all students of his. The assault of M.L. took place during the 1992-1993 school year when L.F. was the school librarian at an elementary school attended by M.L.

[2] According to an Agreed Statement of Fact filed with the court in support of the pleas, L.F. had a practice of organizing his classrooms so that the students’ desks were arranged in rows facing the front of the class, while his desk was at the back of the class.

[3] The indecent assaults of three of the four female complainants followed a similar pattern. L.F. would call the female student to attend at his desk. Under the guise of reviewing the student’s notebook, L.F. would inappropriately touch the student.

[4] With L.C., he put his hand up her skirt and touched her buttocks, often under her underwear. There were multiple incidents, each lasting a couple of minutes.

[5] With C.B., he touched her back under her shirt as well as her buttocks over her clothing. There were multiple incidents of touching throughout C.B.’s grade 4 school year.

[6] With R.R., he similarly touched her back under her shirt and touched her buttocks over her clothing. Again, there were multiple incidents. R.R. believes it was most likely when she was in grade 3.

[7] With J.M., L.F.’s assaults took place in a slightly different context. L.F. approached her while she sat at her desk. He positioned his arm across her chest and placed his hand on the chair between her legs. His wrist and hand touched her vagina outside her clothing. This happened on more than one occasion throughout the school year, but the Agreed Statement of Fact was not clear about how many times it occurred. J.M. believes these incidents occurred when she was in grade 4 or 5.

[8] The assault on M.L. was of a different character. M.L. was in grade 6 in September 1992. M.L. was in the washroom with a friend. L.F. entered the washroom and assaulted both M.L. and his friend. He grabbed M.L. by the chest and threw him into a wall, knocking the wind out of him.

[9] Following the guilty plea, defence counsel requested a Pre-Sentence Report. The sentencing was adjourned to permit sufficient time for the PSR to be prepared. It was delivered on April 8, 2024 and it is generally favourable to L.F.

[10] Sentencing submissions were made on April 12, 2024 and the matter adjourned to today’s date for the imposition of sentence.

[11] Sentencing is an important and delicate step in a criminal proceeding. It is the opportunity for the court to express the community’s censure of the offender’s conduct and to ensure that justice is done for the victims of the offences. It is important that the court send a message to the community that what L.F. did is not acceptable and will not be tolerated and it will be treated strictly by the courts. And it is important that L.F. hear the message that what he did was very serious; it caused serious harm to the victims and the community. L.F. must understand that society does not accept him acting like this.

[12] In fixing and imposing a sentence on L.F., the court is guided by the overarching principle of proportionality. In other words, the requirement that any sentence imposed be commensurate with the gravity of the offences committed and L.F.’s moral blameworthiness. Proportionality engages not only censure, but also the principle of restraint, which requires that the court impose the least intrusive sentence and the shortest duration to achieve a just, fit and proportionate sentence.

[13] This is a difficult case. L.F. committed very serious offences. All convictions involve offences of violence. The four indecent assault convictions are offences of sexual violence committed against children. The offence of “indecent assault” was part of the Criminal Code in the late-1970s and early-1980s when the offences took place. The maximum sentence at that time was five years imprisonment. The offence is now known as sexual assault in the current iteration of the Criminal Code. The maximum sentence has been increased substantially since these offences occurred. It is now 14 years, where the victim is under the age of 16. L.F. is entitled to be sentenced in accordance with the lower sentence in effect at the time the offences were committed. [i]

[14] Offences of sexual violence are always serious, particularly when committed against children. The Supreme Court has recognized that sexual offences against children are “violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families and communities.” [ii]

[15] The gravity of the offences is very significant given the life-altering consequences that frequently flow from sexual violence. Given that the offences in issue are historical, occurring over 40 years ago, we can readily observe their long-term impacts. Each of the victims of L.F.’s sexual violence filed a victim impact statement with the court. They are all consistent.

• L.C. described losing her fun and carefree life as a child. She lost trust in her stepfather, feared other male figures in her life, felt confusion and prejudice, suffered lowered grades, engaged in substance abuse, and missed out on educational and vocational opportunities;
• C.B. described losing her voice, and a lifetime of feeling shame and unworthiness. She has difficulty trusting in intimate relationships and has engaged in substance abuse. She has spent significant time and financial resources on psychological and spiritual counselling;
• R.R. described feeling confused and afraid by L.F.’s actions. She said she lost her voice and suffered years of abuse by other males over the ensuing years. She struggles to trust men and has a generalized fear of them. She continues to suffer anxiety and depression. She has spent thousands of dollars on therapy;
• J.M. described the theft of her innocence by L.F. She was left confused, traumatized and “grossed out” by his actions. She was never able to trust another male teacher. L.F., she said, caused her a great deal of pain.

[16] L.F.’s moral blameworthiness is significant. He was in a position of trust in relation to each of the victims. They were entirely vulnerable to him. He breached that trust and took advantage of their vulnerability in the worst way.

[17] In many cases like this one, a penitentiary sentence would be fit and just and I would be justified in imposing it. In the unique circumstances of this case, however, it is not the sentence that I intend to impose. Instead, I impose a sentence of two years, less one day, to be served by way of a conditional sentence order. I will set out the specific terms of the order momentarily.

[18] The imposition of a conditional sentence of less than two years is rare, but not unheard of, in cases involving sexual violence against children. I will take a moment to explain why, in my view, it is an appropriate sentence in the circumstances of this case.

[19] First, is important to note that L.F.’s guilty plea was the product of significant negotiation through the judicial pre-trial process. Those negotiations did not lead to a joint submission on sentence. The Crown was not able to join the defence in proposing a sentence of two years less a day, to be served conditionally. But the Crown was not strongly opposed to such a sentence and made submissions on the terms to be included in a conditional sentence order should one be imposed. The Crown agrees that a conditional sentence is legally available in the circumstances of this case.

[20] Second, L.F. is 75 years old. He has no criminal record. He has never been in trouble with the law before. He appears to have lived an exemplary life following the period in which the offences before the court were committed. That fact does not excuse the terrible offences he committed long ago. But coupled with his genuine remorse, it is a mitigating factor for the court to consider.

[21] Third, L.F.’s guilty plea and his acceptance of responsibility for the alleged offences is a significant mitigating factor. Offences that took place 40 years ago are notoriously difficult to prove beyond a reasonable doubt. Historical offences that depend on recollections of events that occurred long ago and at a time when the victims were young children are particularly difficult to make out to the reasonable doubt standard. There is a straightforward reason for this. Human memory is frail. It fades over time. The Court is always alive to “the inherent frailties attaching to evidence that attempts to reconstruct distant events through the prism of memory that may be coloured or distorted by the erosive impact of time and life experience.” [iii]

[22] L.F.’s plea was offered in spite of the inherent difficulties in the Crown’s case. It brought certainty to the outcome and justice for the victims of his offences. And it did so in a way that avoided any of the victims having to testify about traumatic events from their past, either at a preliminary hearing or at trial.

[23] L.F. has, of course, been shamed in the community. He has lost friends. And he has had to come face to face with the pain he has caused to the complainants as a result of his actions committed so many years ago.

[24] I am satisfied that L.F. is not going to commit criminal offences in the future, including offences of the nature that bring him before the court today. It is apparent to me that L.F. understands the gravity of his conduct. Long ago he was able to impose sufficient self-discipline to prevent any further offending. L.F. recognizes that what he did was terribly wrong and he has expressed genuine remorse for his actions. He has strong family and community support. A probation officer wrote a report that was favourable to him and indicated support for community supervision, coupled with counselling.

[25] Because this case involves sexual violence against children, denunciation and deterrence are the principal objectives of any sentence imposed. [iv] As I indicated, those objectives would ordinarily support the imposition of a penitentiary sentence. In all of the circumstances present here, however, I am satisfied that these objectives will be accomplished by a conditional sentence of two years less one day.

[26] A quarter of a century ago, the Supreme Court set out certain principles applicable to conditional sentences. [v] Those principles continue to apply today. They include:

(a) Conditional sentences are meant to be punitive in nature; (b) A conditional sentence can provide a significant amount of denunciation, particularly when onerous conditions are imposed; (c) A conditional sentence can provide significant deterrence if sufficiently punitive conditions are imposed; (d) When the objectives of rehabilitation, reparation and promotion of a sense of responsibility may realistically be achieved, a conditional sentence will likely be the appropriate sanction, subject to considerations of denunciation and deterrence; and (e) While aggravating circumstances relating to the offence or the offender increase the need for denunciation and deterrence, a conditional sentence may still be imposed even if such factors are present.

[27] A conditional sentence order is not a gift to an offender. It is a period of incarceration to be served in the community under strict conditions. [vi]

[28] There have been a number of other instances where conditional sentences have been imposed in arguably similarly circumstances, which are reflected in caselaw cited to me by defence counsel. [vii] These cases demonstrate that conditional sentences are exceptionally imposed in cases involving sexual violence against children. I am satisfied that this is one of those rare cases where a conditional sentence will meet the sentencing objectives of denunciation and deterrence despite the significant gravity of the offences and the significant moral blameworthiness of the offender.

[29] In the result, I impose a global sentence of two years less one day, broken down as two years less one day, on each of counts 2, 4, 6, and 12 and a sentence of three months on count 8, all to be served concurrently.

[30] The sentence is to be served conditionally, on the following terms:

(a) L.F. will be subject to a house arrest condition throughout the entirety of the sentence. He will be confined to his residence at 227 Wilfred Avenue, North York, Ontario, or its surrounding yard, throughout that period, except: (i) For medical emergencies involving him or any member of his immediate family; (ii) To attend pre-arranged medical or counselling appointments; or, (iii) For four hours each Saturday, between the hours of 10:00 a.m. and 2:00 p.m., to obtain the necessaries of life. (b) He will be subject to geolocation monitoring by Recovery Science Corporation by means of a GPS-enabled ankle bracelet and, to that end, he must abide by all of its rules and protocols by providing his signature on the GPS Rules and Protocols attached as Schedule “A” and forming part of the conditional sentence order; (c) He is not to possess any weapons, as defined in the Criminal Code; (d) He is to attend and actively participate in any assessment, counselling or rehabilitative programs suggested by his supervisor. To that end, he is to sign any release form necessary to enable his supervisor to monitor his counselling; and, (e) He is prohibited from: (i) attending a public park or 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, schoolground, playground or community centre; (ii) having any direct or indirect contact with any of L.C., C.B., R.R., and J.M., and to remain 100 metres away from anywhere he knows any of them to live, work, worship or otherwise be; (iii) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years; and, (iv) having any contact — including communicating by any means — with a person who is under the age of 16 years, unless he does so in the presence of and under the direct supervision of his wife, Kathleen Wong.

[31] The conditional sentence will be followed by a three-year period of probation on the following terms:

(a) He is to keep the peace and be of good behaviour; (b) He is to appear before the court when required to do so by the court; (c) He is to notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change in employment or occupation; (d) He is to attend and actively participate in any assessment, counselling or rehabilitative programs suggested by his probation officer. To that end, he is to sign any release form necessary to enable his probation officer to monitor his counselling; and (e) He is prohibited from: (i) attending a public park or 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, schoolground, playground or community centre; (ii) having any direct or indirect contact with any of L.C., C.B., R.R., and J.M., and to remain 100 metres away from anywhere he knows any of them to live, work, worship or otherwise be; (iii) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years; and, (iv) having any contact — including communicating by any means — with a person who is under the age of 16 years, unless he does so in the presence of and under the direct supervision of his wife, Kathleen Wong.

[32] In addition, the following ancillary orders are imposed:

(a) A s. 109 weapons prohibition order, for a period of 10 years, on counts 2, 4, 6 and 12; (b) A DNA order on counts 2, 4, 6 and 12; and (c) An order that he comply with the Sex Offender Information Registration Act for a period of 20 years, on Counts 2, 4, 6 and 12.

C. Boswell J.

Released: June 10, 2024

Endnotes

[1] This written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If there are any discrepancies between the oral and written versions, it is this official written Ruling that is to be relied upon.

[i] Charter of Rights and Freedoms, s. 11(i).

[ii] R. v. Friesen, 2020 SCC 9, at para. 5.

[iii] R. v. Sanichar, 2012 ONCA 117, at para. 42.

[iv] See s. 718.01 of the Criminal Code. See also R. v. Lis, 2020 ONCA 551, at paras. 47 and 55.

[v] R. v. Proulx, [2000] 2 S.C.R. 61. See also R. v. P.S., 2021 ONSC 5091, at para. 70.

[vi] R. v. P.S., as above, at para. 72.

[vii] Cases cited by defence counsel include R. v. P.S., as above; R. v. Gunaratnam, 2021 ONSC 8270; R. v. K.K., 2020 ONSC 7198; R. v. Beduya, [2023] O.J. No. 2770; R. v. S.E., 2023 ONSC 6259; R. v. Campbell, 2021 B.C.S.C.C 323; and R. v. Vaux, 2021 BCSC 1773.