Crown: Paul Tait, Assistant Crown Attorney, Newmarket
Defence: Craig Penney, Sex Crimes Defence Lawyer, Toronto
¶ 1 THE COURT: On September 23, 2004, A.T. entered a plea of guilty to a charge of sexual assault on the person of [the complainant], these offences to have occurred between 1996 and 1999.
¶ 2 The facts are as follow: the complainant disclosed ongoing sexual abuse from the fall of 1996 when she was in the first grade to the spring of 1999. The accused person was employed by the parents of the complainant. Mr. A.T. approached the complainant and asked to pull her pants down. He would then fondle her, and, using her words, "fiddle around down there." He exposed his penis and had her rub it. These actions caused her to feel shame and embarrassment, but nevertheless they continued until the spring of 1999. She was asked to perform sexual acts on the accused. The last sexual contact was in May of 1999 at her father's birthday party.
¶ 3  The abuse fell within the time indicated on the information, and during this period there were seven to ten events, although Mr. Penney submits that the events were compressed into a three-month period.
¶ 4 The Crown seeks a period of incarceration in the nine to fourteen month range. The Crown also seeks a section 161 order as well as a DNA order. The Crown submits that if this Court imposes a conditional sentence, it ought to be longer than the nine to fourteen months of traditional incarceration it seeks.
¶ 5 Mr. Penney, on behalf of Mr. A.T., asks this Court to consider a term of incarceration, on a conditional sentence basis, in the same range as the Crown seeks. The defence requests that a section 161 order not be imposed, but agrees that a DNA order is mandatory.
¶ 6 The Court has had the benefit of reading victim impact statements from [the complainant] and her mother A.Q. and reports from Dr. Timothy Quek, Dr. Ronald Langevin, written statements from Mr. A.T.'s wife Nina T., and letters of references from A.K. and V.P.
¶ 7 The Crown and defence have filed case materials, some of which will be reviewed in these reasons.
¶ 8 The report of Dr. T.K. Quek outlines how the relationship between Mr. A.T. and the young victim started and progressed to the sexual activity. Dr. Quek notes that here is good evidence to support the fact that Mr. A.T. was suffering from severe depression during the period he was working for his employer. He does report that Mr. A.T. showed no significant personality disorders, no compulsive disorders or sexual deviance disorders. He does report that Mr. A.T. showed no significant display behaviour that points to being sexually attracted to children, nor does he use child pornography. The report indicates a desire to introduce personal change in his life. He has a strong relationship with his own son. He is gainfully employed and has emotional support from his family, and wishes to continue with counselling.
¶ 9 Dr. Ron Langevin Ph.D, administered a number of tests to Mr. A.T. His report is filed and dated October 29, 2004. The tests are indicated at page one of the report. They are as follows: (1) Bender Gestalt Test; (2) Clarke Sex History Questionnaire; (3) Halstead Reitan Neuropsychological Test Battery (in part); (4) Hare Psychopathy Checklist; (5) Medical Screening Questionnaire; (6) Milton Clinical Multiaxial Inventory; (7) Phallometric Test of Erotic Preference; (8) Porteus Mazes; (9) Schedule for Affective Disorders and Schizophrenia; (10) Sex Offender Risk Appraisal Guide; (11) Verbal Fluency Test. (12) Violence Risk Appraisal Guide; (13) And the Wisconsin Card Sort Test.
¶ 10 The report indicates there is significant anxiety with a pervasive depression and confused thinking. There is no indication of a personality disorder. Regarding sexual history and preference, a significant number of tests were conducted on Mr. A.T. He underwent phallometric testing, the results showing an index of arousal to adults versus children to be within normal limits. He does not present a violent or criminal history. The report indicates he has not experienced symptoms of alcoholism, although he admits to be an occasional heavy drinker. He does not suffer from any neuropsychological impairment, and scored in the normal ranges. He has had some health problems but at the time of the testing, did not show any difficulty or history of neurological or endocrine disorders.
¶ 11 The Violence Risk Appraisal Guide indicates he is a low risk for future aggression. The SORAG indicates also that he is a low risk for committing future sexual offences. Dr. Langevin concludes his report by indicting that Mr. A.T. presents a pro-social, non-violent history. There are no addictions. He does note he is clinically depressed. He recommends relapse prevention therapy for sexual offenders once his emotional condition stabilizes. He finds that the sexual offences before the Court are out of character for Mr. A.T. and occurred at a time when he was suffering from chronic depression and anxiety/stress. Treatment is recommended to address these emotional problems. There were no indications of personality disorder or history of inappropriate sexual behaviour, supported by the results of the phallometric testing.
¶ 12 The letter from Mr. A.T.'s wife is most supportive, although she expresses disbelief at his actions. These events have caused uncertainty within the family, in terms of finances and fear someone will say something to [their young] son. She confirms his almost non-stop work schedule at the time of these events, and noted changes in her husband but did not think it was serious. She indicates he is in a better emotional state at the time of the writing of this letter on November 1, 2004 and notes his remorse. She is confident that he has made great strides and that he will not ever repeat this behaviour. There are, as well, very positive letters filed on his behalf from Professor Y., a mathematics professor, Mr. A. K., a salesman, and Mr. V.P., who has known Mr. A.T. for 12 years and speaks of his contributions to the community.
¶ 13 I have reviewed the victim impact statement from [the complainant] and A.Q., her mother. They are compelling and underscore the damage done to the victim and their family life generally. [The complainant] constantly thinks about what happened and has little trust in anyone other than family. She says she experiences horrible feelings in school when the subject matter of sexual abuse is discussed in health class. Given her age, and at the time of the victim impact statement age 11, she apologizes for not being able to express her feelings better. Her mother expresses the pain of a mother. She speaks of her own nightmares and now being overprotective, of having their family life turned upside down. She notes the experience has changed [the complainant]'s relationships with her own friends, and has affected her schoolwork as well. Understandably, her reaction and comments in the victim impact statement are severe, as indicated particularly in the last sentence of her victim impact statement. I will not read the sentence, but it is part of the record as her victim impact statement has been filed as an exhibit in these proceedings.
¶ 14 Mr. A.T. made a statement in Court in which he expressed his apologies to [the complainant] and her family. He commented on the professional help he has sought and indicates he will continue with that as long as necessary. He says he will never repeat this behaviour again and wishes to return to be the person he was before.
¶ 15 It is noted that Mr. A.T. is 52, and has been in Canada since 199*. He has been described as an intelligent and hardworking person who has always held gainful employment and has provided for his family. He does not have a criminal record. His actions are shocking to those who know him and are close to him, and have been described as out of character.
¶ 16 Section 718 of the Criminal Code reads as follows: "The fundamental purpose of sentencing is to contribute along with crime prevention initiatives to respect for the law and the maintenance of a just, peaceful and safe society, by imposing just sanctions that have one or more of the following objectives: (a) To denounce unlawful conduct; (b) To deter the offender and other persons from committing offences; (c) To separate offenders from society where necessary; (d) To assist in rehabilitating offenders; (e) To provide reparations for harm done to victims or to the community and to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims families.
¶ 17 Section 718(1) reads: "A sentence must be appropriate to the gravity of the offence and the degree of responsibility of the offender."
¶ 18 Section 718.2 in part reads: "A Court that imposes a sentence shall also take into account the following principles. A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender."
¶ 19 Lastly, I refer to s. 742.1: "Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the Court imposes a sentence of less than two years and is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in s. 718 to s. 718.2 the Court may for the purposes of supervising the offenders behaviour in the community, order that the offender serve the sentence in the community subject to the offender's complying with the conditions of a conditional sentence order made under s. 742.3."
¶ 20 In determining what is a fit and proper sentence, the objectives of s. 718, must be interwoven into such a disposition. In assessing whether a person is a candidate for a conditional sentence, the Court must satisfy itself that there is no mandatory minimum sentence of imprisonment for the offence, and the range of sentence to be imposed will be one of less than two years. There is no mandatory minimum in this matter and the sentence, which I will impose, will be that of less than two years. I have considered the risk factors as set out in R. v. Maheu, 116 C.C.C. (3d) 361 where at page 374 they are listed as follows: (1) The nature of the offence; (2) The relevant circumstances of the offence which can be put in issue prior and subsequent incidents; (3) The degree of participation by the accused; (4) The relationship between the accused and the victim; (5) The profile of the accused; (6) His or her conduct following the commission of the offence; (7) The danger, which the interim release of the accused represents for the community.
¶ 21 Each of these factors have been considered and resolved in favour of the accused in assessing these risk factors. I am further satisfied in assessing the risk factor of community safety based on the material filed herein and the submissions that Mr. A.T. would not endanger the safety of the community if he served his sentence in the community, notably that part of the community affected by this matter. These criterion having been satisfied only established that Mr. A.T. is a candidate for a conditional sentence.
¶ 22 The aggravating factors herein are: (1) while not in a traditional position of trust, the victim herein was a child of tender years giving rise to what I consider a gross exploitation of this victim; (2) the impact of such a crime on the victim; (3) the intrusive nature of this offence; (4) the crime was committed in the home of the victim; (5) the timeframe over which these offences took place and the number of events; (6) there was an obvious imbalance in power between the two parties given the vast differences in their ages and the fact that Mr. A.T. was engaged in the employ of the victim's father. While not acts of violence per say as they are traditionally contemplated in these Courts, such acts against children in my view are acts of violence and thus in my view fall within the aggravating factor category.
¶ 23 The mitigating factors are: (1) the plea of guilty; (2) compliance with the terms of his release; (3) the treatment programme undertaken by Mr. A.T. prior to any Court order; (4) he has no criminal record; (5) he is employed; (6) and letters have been filed in his support.
¶ 24 I have considered the sanctions available to this Court, other than traditional sentence of incarceration. Lamer C.J.C. at page 32 of R. v. Proulx, cited at 30 C.R. (5th) 1,  1 S.C.R. 61, notes: "The gravity of an offence is clearly relevant to whether a conditional sentence is appropriate in these circumstances."
¶ 25 A brief overview of the jurisprudence indicates the higher Courts in this Province and elsewhere have in certain circumstances, supported the imposition of conditional sentences in these types of cases. It is to be noted such disposition is rare, a view judicially expressed set out in R. v. S.W.,  O.J. No. 2867 para 8. It is important to canvass the rulings in the various judgments in these matters in order to gain some perspective of judicial opinion.
¶ 26 The Supreme Court of Canada in R. v. L.F.W.,  1 S.C.R. 132, upheld the Newfoundland Court of Appeal, which affirmed the 21-month conditional sentence of trial Court. The facts of the case are as follows: "The female victim was between six and 12 years old while the respondent was 22 or 23. There are 10 to 12 incidents of forced masturbation and fellatio." In that case, sentencing coming some twenty years after the offences, the respondent was a widower with four children with substantial community support, and lead evidence of good character. Mercer J., the trial judge found that the evidence of good character was a mitigating factor. Such evidence is absent in the case at bar. In her dissenting opinion, L'Heureux-Dube J. comments at paragraph 31 of L.F.W. "Recognizing that there is no presumption in factor of incarceration for certain types of offences, I adopt the following comments of Cameron J.A. at p. 148: I do start from the premise that sexual assault of a child is a crime that is abhorrent to Canadian society and society's condemnation of those who commit such offences must be communicated in the clearest of terms. As to moral blameworthiness, the use of a vulnerable child for the sexual gratification of an adult cannot be viewed as anything but a crime of demonstrating the worst of intentions."
¶ 27 At paragraph 25 of L.F.W., Lamer C.J.C. noted: "Were I as trial judge, I might well have agreed with Cameron J.A and imposed a sentence of incarceration. That said, as an appellate judge, deference must be given to the trial judge's decision. Mercer J. did not commit a reversible error in principle and thoroughly considered all appropriate factors. Therefore, despite the fact that I might have imposed a sentence of incarceration, the sentence will not be disturbed."
¶ 28 In R. v. R.N.S.  1 S.C.R. 149, there is a recognition by the Court that a sentence of incarceration of nine months would have been appropriate, on these facts: (1) vaginal touching of a granddaughter between the ages of five to eight; (2) by her grandfather age of 46 to 50 at the time of the offences; (3) on a number of occasions between 1990 and 1994; (4) and an invitation to the girl accepted by her, for the purpose of penile touching on three occasions. R.N.S. is a classic breach of trust and the facts are distinguishable from those in the case at bar.
¶ 29 R. v. Neumann, 44 W.C.B. (2d) 525, a decision of Hill J. of the General Division as it then was, sentenced Mr. Neumann to a conditional sentence of two years less a day on two counts of indecent assault and two counts of sexual assault. The facts include penile touching and fellatio, with one boy on numerous occasions while he was the legal guardian. Similar behaviour occurred with other boys. The incidents took place over an eight-year period from 1980 to 1988. The accused was 64 and in poor health at the time of the sentencing. He was the sole support of his elderly mother. His alcohol addiction exacerbated his paedophilia, and removed his inhibitions. He had been on bail for over four years without incident, which was a factor in the Hill J.'s sentence. This is another illustration of a breach of trust situation, which is not strictly the case in the matter before me.
¶ 30 A stern pronouncement from the Court of Appeal is expressed in R. v. G.L.,  O.J. No. 1719, at paragraph 7: "This Court has repeatedly stressed both the serious nature of sexual abuse against children and the importance of sentencing sexual offender with the principles of denunciation and deterrence in mind" The conclusions of Dr. Quek and Langevin must be considered. Dr. Quek at page five of his report states: "In my evaluation and counselling of Mr. A.T., I see him at a low risk of re-offending" and lists the six reasons for arriving at this conclusion. Dr. Langevin at page six of his report notes as follows: "He does not appear to be suffering from a sexual disorder or history of inappropriate sexual behaviour. Acurial measures indicate that Mr. A.T. is a low risk for either violent or sexual offences. Continued treatment and stabilizing of his emotional condition should reduce that risk even further." This Court is satisfied that, as well, based on his lack of a prior record, and his own efforts at rehabilitation, i.e. his counselling, that to impose a conditional sentence would be sufficient to specifically deter the defendant. Reflecting then on the objectives of s. 718 of the Criminal Code, the question then becomes whether the imposition of a conditional sentence can achieve those objectives.
¶ 31 In answering that question, the comments of Moldaver J.A. in R. v. Bedard, (2001), 158 C.C.C. (3d) 216 O.C.A. on facts that are distinguishable from the facts in this case, reflect the concern of the Courts in these cases generally with an object of addressing specific and general deterrence and denunciation. He notes: "In my view, criminal conduct of this nature calls for severe punishment. Normally it would attract a penitentiary sentence. I contrast those comments with the opinion of Lamer C.J. in Proulx where at paragraph 127 he states: "A conditional sentence can provide significant denunciation and deterrence. As a general matter the more serious the offence, the longer and more onerous the conditional sentence should be. There may be some circumstances however, where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct or to deter similar conduct in the future." Lamer C.J.C. notes in Proulx: "Where a combination of both punitive and restorative objectives may be achieved a conditional sentence may be more appropriate than incarceration." He notes as well that: "A conditional sentence may be imposed even where there are aggravating circumstances."
¶ 32 I have carefully considered, and reviewed the applicable jurisprudence. I have also considered my own sense of what is just and proper in the circumstances within the context of the relevant case law and the material filed. I have heard the submissions of counsel. The appropriate penalty in this matter can be only one of two types of incarceration: (1) Serving a period of time in a closed custodial setting, prison; or (2) A conditional sentence, which in essence amounts to incarceration to be served under a house arrest regime. While every sexual offence by an adult against a child can be considered a breach of trust of a type, strictly speaking it is not such where there is no family relationship, or guardianship or student teacher relationship although not an exhaustive list. These are egregious facts. I have wrestled with the disturbing facts of this case and the number of occasions during which these acts were perpetrated on this innocent child. The Crown has made appropriate and responsible submissions in this matter. It would be difficult to be critical of the position it advances. A traditional jail sentence would be just and proper in these circumstances. However, I am satisfied that the objectives of s. 718 to 718.2 can be achieved with the imposition of a conditional sentence. Before passing sentence, I will say that the sentence which is about to be imposed is as severe as I am able to contemplate without imposing a term of custody behind bars. There are those who consider a conditional sentence in some sense more onerous than a jail term. Lamer C.J.C. states at page 39 of Proulx: "The stigma of a conditional sentence with house arrest should not be underestimated. Living in the community undersea strict conditions where fellow residents are well aware of the offender's criminal conduct can provide ample denunciation in many cases. In certain circumstances, the same of encountering members of the community may make it even more difficult for the offender to serve his or her sentence in the community than in prison.
¶ 33 Stand up please, sir.
¶ 34 There will be a conditional sentence in this case, the duration of which will be for the period of 24 months less one-day. The terms will be as following: (1) You are to keep the peace and be of good behaviour; (2) You are to appear before the Court when required to do so by the Court; (3) You are to report forthwith to your supervisor and thereafter as required by your supervisor in the manner directed by your supervisor; (4) You are to remain in the Province of Ontario unless you receive written permission from your supervisor to go outside the Province; (5) You are to notify your supervisor of any change of name or address, and promptly notify the supervisor of any change in employment or occupation; (6) You are to have no contact directly or indirectly with the victim or any member of her family, if known to you, nor will you attend within 100 meters of their places of residence, employment or institutions of education, if known to you; (7) You will continue such programme of counselling you are currently enrolled in or take such counselling or assessment in relation to sexual offending and psychological issues, relating thereto, and for depression as recommended by your supervisor; (8) You will reside at an address approved of by your supervisor; (9) For the first 18 months, of this conditional sentence order, you are to remain confined at your home at all times with the following exceptions: for school attendance, for all purposes of employment, for medical appointments or emergencies involving you or any member of your immediate family, for religious services, for one period not to exceed three hours every week between the hours of 9:00 a.m. and 7:00 p.m. for the purpose of shopping for necessities, for legal obligations regarding compliance with this conditional sentence order. Each of these exceptions includes permission for immediate direct travel only to and from the applicable location. You will provide a purposed schedule of school or work hours, medical appointments, religious services, shopping time and any legal obligations pursuant to this order to your supervisor. Your supervisor will incorporate these into a written letter of permission allowing you to be out of your residence and that letter shall be carried by you on your person at all times while you are out of your residence. You may also obtain from your supervisor written permission to be absent from your residence for any other reason deemed appropriate by your supervisor. Such written permission shall be carried by you on your person at all times while you are out of your residence.
¶ 35 Following the completion of your conditional sentence order, sir, I am placing you on probation for three years. The terms are as follows: (1) You are to keep the peace and be of good behaviour; (2) You are to appear before the Court when required to do so by the Court; (3) You are to notify your probation officer of any change of name or address, or any change of employment or occupation; (4) You are to report to a probation officer today and thereafter once every six months; (5) You are to reside at an address approved of by your probation officer, (6) You are to have no contact directly or indirectly with the victim in this matter or any member of her family, if known to you, nor will you attend within 100 meters of their places of residence, employment or institutions of education, if known to you; (7) You will actively participate in such rehabilitative programmes for sexual offending and psychological issues, relating thereto, and for depression as recommended by your probation officer; (8) Over the course of the first 14 months of your probation, you will perform 100 hours of community service to commence within 60 days from the date that the probation order starts and to be completed to the satisfaction of the probation officer; (9) You will also, sir, submit to a DNA testing pursuant to the provisions of the Criminal Code; (10) There will be a s. 161 of the Criminal Code order, a prohibition order that A.T. is 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 14 years and this will be for a period of ten years.
¶ 36 I have imposed a sentence which I consider to be onerous. Mr A.T. has obligations as a result of my sentence for the next five years. He has a young son and I am giving great effect to the submission of Mr. Penney with respect to his request that I not impose condition (a) which involves attending public parks or swimming areas where there might be persons under the age of 14. I am also basing my decision not to impose subsection (a) as a result of the letters which have been filed. I have faith in what has been indicated by the doctors and indeed by the wife of Mr. A.T. and his avowed commitment not to become involved in this type of offence further.