Citation: R. v. J.S., 2024 ONSC 4815
Court File No. CR-23-000741
Date: 2024 08 20
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
v.
J.S.
R E A S O N S F O R S E N T E N C E
BEFORE THE HONOURABLE JUSTICE C. CONLAN
On August 20, 2024, at GUELPH, Ontario
APPEARANCES:
C. Liu Counsel for the Crown
S. Cowan Counsel for J. S.
ONTARIO COURT OF JUSTICE
T A B L E O F C O N T E N T S
Examination Cross- Re-
WITNESS in-Chief Examination Examination
Reasons for Sentence - Page 1
E X H I B I T S
EXHIBIT NUMBER ENTERED ON PAGE
Transcript ordered: August 21, 2024
Transcript Completed: November 28, 2024
Ordering Party Notified: November 28, 2024
TUESDAY, AUGUST 20, 2024
R E A S O N S F O R S E N T E N C E
CONLAN, J. (Orally):
You may remain seated for my remarks, J. S.
At the outset, so that nobody is left in suspense, particularly the victims and the victims’ family members, and the offender J. S., I will be accepting the joint submission on sentence. I will not be disturbing any portion of the joint submission.
But I do want to give some oral reasons for the sentence that is being imposed. The facts of the offence that J. S. committed are very serious. He has been found guilty of touching for a sexual purpose his young granddaughter, contrary to section 151 of the Criminal Code. Specifically, while the victim was what I would describe as being very young, between eight and 14 years of age and visiting with the offender J. S. she had to endure her grandfather inappropriately for a sexual purpose rubbing her inner thigh, touching her groin area over her clothing. These are serious facts.
It is an egregious breach of trust that J. S. has committed, not only against T. S. specifically but against other members of the family by extension who have also felt the gross consequences of that betrayal of trust.
In terms of the circumstances of the offender J. S. is a first offender. He comes to court with no criminal history. He is not a young man, currently 74 years of age, and he has some health issues that he is dealing with.
With regard to the principles of sentencing, sentencing is a highly individualized process. It must take into account the unique facts of each case and the particular circumstances of each offender. No two sets of facts are the same. No two offenders are the same. For this type of offence the paramount principles of sentencing are first, denunciation, to denounce, to condemn J. S’s. unlawful conduct. General deterrence, to deter other like-minded members of the community from committing these types of serious sexual offences. Specific deterrence, to deter J. S. from committing any further criminal offence, and rehabilitation. Rehabilitation is particularly important in cases of first offenders because the prospect of successful rehabilitation, at least theoretically, ought to be higher for somebody who has no criminal record, or a very limited criminal history as compared to a recidivist who may be beyond successful rehabilitation. So, denunciation, general deterrence, specific or individual deterrence and rehabilitation are the key sentencing principles that are applicable in this case.
With regard to the aggravating the mitigating factors, an aggravating factor on sentence is something that would tend to lengthen the appropriate sentencing range. An aggravating factor is something that would tend to make the sentence more severe. A mitigating factor on sentence is something that tends to lessen the severity of the appropriate sentence. There are aggravating factors present in this case, there are mitigating factors present in this case. Part of the sentencing process is for the court to balance the aggravating factors and the mitigating factors.
The chief aggravating factor in this case is something that I referred to previously. It is the betrayal of trust in having an older, presumably more mature, more responsible, wiser family member abusing, taking advantage of, touching for a sexual purpose a much younger, much more immature family member, one’s own granddaughter. That is a betrayal of trust that really is beyond comprehension. It explains why the Victim Impact Statements are so moving in a case like this because when something like this happens which is totally unexpected there are feelings of uncertainty, self-blame, a lack of trust in others, confusion. These are the types of things we have heard about during the course of listening to the Victim Impact Statements today. These are the consequences of such a serious betrayal of trust. That is the chief aggravating factor in this case.
In mitigation is the fact that J. S. entered a guilty plea to the charge. The juris prudence is clear that a guilty plea in and of itself is a strong mitigating factor on sentence. It is an expression of remorse by the offender. It is an acceptance of responsibility by the offender. Even if it does not come right away in the process it is something that spares the victims the uncertainty and the very difficult experience of a trial.
A preliminary inquiry is one thing, but the victims have to realize that a trial is an entirely different beast from a preliminary inquiry. It is much more antagonistic. Usually, it is much longer in duration and the end result is never a certainty. So, J. S’s guilty plea has strong mitigating effect in this case. It has brought some finality, perhaps late, but some finality to the process. As well, in addition to the guilty plea it is mitigating that J. S. comes to court as a 74-year-old man with no criminal history so he has to be treated as a first offender who has pleaded guilty to the offence.
There is a joint submission on sentence that has been put forward. A joint submission means that both the Crown and the defence agree that the sentence being suggested is a fit one.
The law is very clear that a court ought to accept a joint submission on sentence unless the joint submission is so unfit, so unreasonable that acceptance of it would bring the administration of justice into disrepute, that it would cause a loss of public confidence in the criminal justice system. There is a wide range of available fit sentences in any given case including this one. I am not in a position at all to conclude that this joint submission, if accepted by the court, would bring the administration of justice into disrepute. It is within the range of available fit sentences on these facts for this offender and that is why the court is accepting the joint submission.
I will now move to outlining the specific details of the sentence that is being imposed. I will begin with the ancillary orders. The Victim Fine Surcharge is waived in the circumstances of this case.
There is a primary designated DNA order made under section 487.051 of the Criminal Code.
There is a Firearms and Weapons Prohibition order made for a duration of ten years in accordance with the two subsections.
There is a section 161 Criminal Code order made for a duration of ten years. The order applies under section 161(1)(a) as well as clause (a.1) and clause (b) and clause (c). The order does not apply under 161(1)(d). This means that J. S. shall be prohibited from 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 day-care centre, school ground, play ground or a community centre for a period of ten years except where J. S. is in the direct presence of a person 18 years of age or older who is aware of the order.
As well, J. S. for a period of ten years is prohibited from being within two kilometres of any dwelling house where, and does this apply to the named victim in the count only? Is that the intention?
MS. LIU: I would be asking for this to apply to all the individuals on the no contact and no attendance term.
THE COURT: Okay. Is that part of the joint submission?
MR. COWAN: Let me explain that to J. S. That’s fine, Your Honour.
THE COURT: J. S. for a period of ten years shall be prohibited from being within two kilometres of any dwelling house where the following named persons ordinarily reside, T. S., C. B., M. B., L. S., D. C. and L. E.
As well J. S. for a period of ten years shall be prohibited from 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.
Finally, for a period of ten years J. S. is prohibited from having any contact including communicating by any means with a person who is under the age of 16 years unless the offender does so under the supervision of a person whom the court considers appropriate. Now is there anybody whose name you want inserted there in the order as someone that the court considers appropriate?
MR. COWAN: His wife.
THE COURT: And her name is?
MR. COWAN: C.
THE COURT: C. S. is named as a person whom the court considers appropriate under 161(1)(c). Is that agreed to?
MS. LIU: Yes. That’s on consent, Your Honour.
MR. COWAN: That is C.
THE COURT: Thank you. That is the 161 order.
In addition, under section 743.21 of the Criminal Code there is a non-communication order with all of those same named persons, T. S., C. B., M. B., L. S., D. C. and L. E.
As well there is a Sex Offender Registry Order issued by the court under section 490.012 of the Criminal Code. The duration of that order is for 20 years. Those are the ancillary orders.
On count number three that J. S. has been found guilty of there is a conviction registered, and
J. S. is sentenced to a period of imprisonment for two years less one day in duration.
Under section 742 of the Criminal Code J. S. shall be permitted to serve the sentence of imprisonment in the community by way of a conditional sentence order.
It is my view that the statutory pre-requisites of a conditional sentence order have been met in this case in that the sentence to be imposed on J. S. is indeed less than two years in duration. As well, I am satisfied that service of the sentence of imprisonment in the community by J. S. would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.
Further, this is not an offence punishable by a minimum term of imprisonment and, as well, this is not an offence under any of the provisions named in 742.1(c) of the Criminal Code. Neither is it an offence named in 742.1(d) of the Criminal Code.
So, it is a conditional sentence order of two years less one day in duration. The terms of the conditional sentence order are as follows:
(a) Keep the peace and be of good behaviour.
(b) Appear before the court when required to do so by the court.
(c) Report as the court directs by telephone to a supervisor and thereafter report when required by the supervisor and in a manner directed by the supervisor.
(d) Remain in Ontario unless you have prior written permission from the court or the supervisor to leave the Province.
(e) Notify the court or supervisor in advance of any change of name or address, and promptly notify the court or supervisor of any change in employment or occupation.
(f) Report by telephone to a supervisor immediately and after that at all times and places as directed by the supervisor or any person authorized by a supervisor to assist in your supervision.
(g) Do not contact or communicate in any way, either directly or indirectly by any physical, electronic, or other means with T. S., C. B., M. B., L. S., D. C. and L. E.
(h) Do not be within 50 metres of any place where you know T. S., C. B., M. B., L. S., D. C. and L. E. to live, work, go to school, frequent or any place you know them to be except for required court attendances.
(i) Attend and activity participate in all assessment, counselling or rehabilitative programs as directed by the supervisor and complete them to the satisfaction of the supervisor.
(j) Do not possess any weapon as defined by the Criminal Code.
For the first eight months of the conditional sentence order, you shall obey a home confinement condition. You shall remain in your residence or on the property of your residence at all times except for any medical emergency involving you or any member of your immediate family, spouse, child, parent or sibling, and except for going directly to and from, or being at court attendances, religious services, counselling and legal or medical or dental appointments with the proviso as well that you may stop for gas on your way to as needed. And, except with the prior written permission of your supervisor. The written approval shall be carried with you during these times, and except once a week on Saturdays from 12:00 p.m. to 4:00 p.m. to shop for groceries and household supplies.
For the second eight-month period of the conditional sentence order instead of the home confinement clause with exceptions that the court just went through there is a curfew. You shall remain in your residence or on the property of your residence between 9:00 p.m. and 6:00 a.m. daily and present yourself at the entrance of that residence when a peace officer requests you to do so within those hours. There are exceptions to the curfew, except for any medical emergency involving you or any member of your immediate family, spouse, child, parent or sibling and except for going directly to and from, or being at court attendances, religious services, counselling and legal or medical or dental appointments with the same proviso that you may stop for gas on your way to as needed, and except with the prior written permission of your supervisor. The written approval is to be carried with you during these times.
Counsel, I have one question for you. There is a condition that is being proposed about no alcohol or other intoxicating substances. The condition appears from my reading of the document that you arrived at to apply only for the first eight months of the order, only during the time of the full home confinement clause because that’s where it appears. Was that the intention? Normally such term about no alcohol or intoxicating substances should apply for the entire duration of the conditional sentence order because if J. S. was behind bars he would not be drinking alcohol or consuming any other intoxicating substance, the same should apply for a CSO.
MR. COWAN: He doesn’t drink or do drugs so it can be the whole time.
MR. LIU: Yes. That was the intention. It was my error. I put it at the wrong spot in my notes.
THE COURT: So, for the entire duration of the conditional sentence order, the entire two years less one day there is a term that J. S. shall not possess or consume alcohol or other intoxicating substances or unlawful drugs or substances except with a valid prescription in your name or those available over the counter. That is the conditional sentence order of two years less one day and its terms.
Following the completion of the conditional sentence order J. S. shall be on a period of probation for three years. The conditions of the three-year probation order are as follows:
(a) Report as directed.
(b) Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer.
(c) Complete them to the satisfaction of the probation officer.
(d) You shall sign any releases of information as will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed.
(e) You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed.
(f) You shall not contact or communicate in any way either directly or indirectly by any physical, electronic or other means with T. S., C. B., M. Be., L. S., D. C. and L. E.
(g) You shall not be within 50 metres of any place where you know T. S., C. B., M. B., L. S., D. C. and L. E. to live, work, go to school, frequent or any place you know them to be except for required court attendances.
(h) You shall not possess any weapon as defined by the Criminal Code.
That is the three-year probation order and its terms. Before I ask J. S. some questions about his understanding and explain to him the consequences of any potential breach of any of these orders is there anything that the court has left out?
MS. LIU: Yes. Regarding the DNA order …
THE COURT: Do you want me to name a time for compliance?
MS. LIU: Yes.
THE COURT: Will it be taken today by the police?
MS. LIU: No. It will, at Rockwood. So that’s the Rockwood Detachment on Tuesdays 12:00 to 2:00 p.m.
THE COURT: On Tuesdays 12:00 to 2:00 p.m. So, the DNA samples shall be given at the Detachment specified by the Crown on this coming Tuesday, one week from today. What is the date of that?
MS. LIU: It is the 27th of August.
THE COURT: On Tuesday, August 27th, 2024, between the hours of 12:00 noon and 2:00 p.m., correct Officer?
COURT OFFICER: That’s right.
MR. COWAN: One moment, Your Honour. I was trying to see, Your Honour, if that could be, I was trying to see if that could be delegated to the Huron O.P.P. but apparently not.
THE COURT: Okay. So, the order that I made stands. On Tuesday, August 27, 2024, at the Detachment specified by the Crown between the hours of 12:00 noon and 2:00 p.m. Just going back, Madam Registrar indicated she is not sure if I said something specific. I think I did but I will repeat it. The home confinement clause with the exceptions that I read in applies only for the first eight months. The second eight months is the curfew with the exceptions. The third eight months are the rest of the conditions. No curfew, no home confinement for the final one-third. Is there anything else that I left out before I ask J. S. some questions about his understanding?
MR. COWAN: Not from the defence, Your Honour.
MS. LIU: Not from me.
THE COURT: Okay. The Victim Fine Surcharge has been waived so there is nothing further I need to say about that. The DNA sample, J. S., you must attend at the Detachment as ordered by the court. If you fail to do so you could be charged with a further criminal offence of failing to obey the DNA order and, if found guilty of that, you could be sentenced to a period in jail. Do you understand that? Yes?
J. S.: Yes.
THE COURT: The section 109 Criminal Code Firearms and Weapons prohibition order you will receive a copy of the order. You must obey that in its entirety. If you do not you could be charged with a further criminal offence and, if found guilty, you could be sentenced to a period of time in jail. Do you understand?
J. S.: Yes.
THE COURT: The section 161 order, the order that deals with playgrounds and swimming places and schools and the like you must obey that order. Its duration is for ten years. If you do not obey that order you could be charged with a further criminal offence and, if found guilty of that, you could very well be sentenced to a period of time in jail. Do you understand?
J. S.: Yes.
THE COURT: The non-communication order under 743.21 of the Criminal Code it involves numerous named persons. You know who all of these people are so there should be no difficulty in obeying the order, but you must be aware that if you do not obey the order you could be charged with a further criminal offence and, if found guilty of breaching that non-communication order, you could be sentenced to a period of time in jail. Do you understand?
J. S.: Yes.
THE COURT: The Sex Offender Registry Order is for a duration of 20 years; you must obey all of the requirements of the Sex Offender Registry. There are certain things you have to do as a convicted sex offender. You must obey the order in its entirety. If you do not you could be charged with breaching the order and, if found guilty, you could be sentenced to a period of time in jail. Do you understand that?
J. S.: Yes.
THE COURT: The conditional sentence order of two years less one day. It is a sentence of imprisonment, but you are being permitted to serve the sentence of imprisonment in the community. You must obey all of the terms and conditions of the conditional sentence order. If you do not there are several serious consequences that could result. First of all, you could be charged with breaching the conditional sentence order, and you could be held in custody without being granted bail until the court determines whether you did breach the conditional sentence order. Do you understand that?
J. S.: Yes.
THE COURT: If you are found to have breached the conditional sentence order you could be sentenced to a period of time in jail for the breach itself. Do you understand that?
J. S.: Yes.
THE COURT: Perhaps most significantly, if you are found to have breached the conditional sentence order you could be forced to serve the entire balance of the two years less one day in a real jail behind bars. Do you understand that?
J. S.: Yes.
THE COURT: So, for example, if you are found to have breached this conditional sentence order next month you could be forced to serve the entire balance of the two years less one day in an actual jail setting. Do you understand?
J. S.: Yes.
THE COURT: The three-year probation order you must obey all of the terms and conditions of that order as well. If you do not you could be charged with breach of probation and, if found guilty of breach of probation, you could very well be sentenced to a period of time in jail. Do you understand?
J. S.: Yes.
THE COURT: Do you have any questions you would like to ask the court, J. S., about any aspect of the sentence, the ancillary orders or the conditional sentence order or the probation order?
J. S.: No, Your Honour.
THE COURT: Counsel, anything else that I left out before we deal with the remaining counts on the indictment?
MR. LIU: Not from my perspective.
MR. COWAN: No thank you.
THE COURT: I would like to say a couple of things in closing. First of all, J. S., hopefully you have many years of life left. I heard you refer earlier to your advancing age. These days 74 years old is not quite as old as what we used to consider 74 years. There is time for you to be rehabilitated. There is time for you to be a productive member of society. There is time for you to have more positive years in this lifetime and so I hope that those things come to fruition for you.
J. S.: Thank you.
THE COURT: With regard to the victims of the offence and the victims of the inappropriate conduct committed by J. S., unfortunately there is nothing that this court can say to turn the clock back and undo what J. S. did. That is what I would most like to do but I cannot do that so I will simply, one, thank the victims, all of the victims, not just the person named in count number three, but everyone for having the strength to make your sentiments known to the court, for preparing your Victim Impact Statements which were very thoughtful and provided much assistance to the court in understanding the consequences of J. S.’s criminal conduct. Thank you for doing that. Thank you for preparing them, thank you for allowing them to be read out in court. Thank you for being here today, whether in person or remotely. I understand that you never get over something like this. It never goes away. You never “recover” from something like this, but I do hope, earnestly hope that you continue in your process of recovery, that you find some measure of peace with your fellow family members and that you are able to move on and enjoy as best you can the remaining time that you have. The other counts on the indictment are they to be marked withdrawn?
MS. LIU: That’s my request.
THE COURT: The other counts on the indictment are marked withdrawn at the request of the Crown. Thank you.
FORM 3
ELECTRONIC CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2))
EVIDENCE ACT
I, NANCY HORVATH certify that this document is a true and accurate transcript of the recording of R. v. J.S. in the Superior Court of Justice held at 74 Woolwich Street, Guelph, Ontario taken from recording 4611_crtrm#1_20240820_074433__10_CONLANC.dcr, which has been certified in Form 1.
Dated this 28th day of November in the year 2024
Nancy Horvath
Act ID 5954607325