R. v. J.(B.), 2011 ONCJ 373

WARNING The court seized with this matter orders that the following notice be attached to the file: The court has imposed an order prohibiting publication and broadcast pursuant to

section 486.4(1) of the Criminal Code . This provision, as well as

section 486.6(1) of the Criminal Code setting out the consequences of failing to comply with an order made under subsection 486.4(1) , read as follows: Order restricting publication — sexual offences 486.4

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a )(

i) to (iii). Mandatory order on application

(2) In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . Offence 486.6

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. Citation: R. v. J.(B.) , 2011 ONCJ 373 ONTARIO COURT OF JUSTICE BETWEEN:

HER MAJESTY THE QUEEN — AND — B. J. Before the Honourable Justice D. M. Nicholas L. Tansey-Miller .................................................................................................... for the Crown M. J. Lafleur .............................................................................................. for the accused, B. J. NICHOLAS, J.: THIS DECISION IS SUBJECT TO AN ORDER RESTRICTING PUBLICATION PURSUANT TO

SECTION 486.4

(1) OF THE CRIMINAL CODE. THE FACTS 1 . On March 14, 2011, the first day of his preliminary inquiry, B. J. pleaded guilty to two counts. He admits that he did between the 1 st of October 2007 and the 1 st of October 2008, for a sexual purpose, touch directly with his hands and his penis, the body of his victim, J. H., who was under the age of 14, contrary to

section 151 of the Criminal Code . He also admits that he did, between the 1 st of October 2006 and the 1 st of October 2007, for a sexual purpose, invite J.H., a person under the age of 14, to touch the body of the accused directly with his mouth. The abuse thus extends over a period of 2 years. 2 . The facts are extremely serious. Between 2006 and 2007, B.J. had sexual relations on several occasions with the victim, who was between 11 and 12 years old. He was pushed away the first time he entered the shower with J.H. and after that in his victim’s bed.

Later there was anal penetration in the shower and then in the victim’s bed. The victim reveals several incidents of oral sex. Once, while he was playing on his computer, the accused started masturbating in front of him. He then put his penis in front of the victim’s face and asked for oral sex. He showed him how to do it. He held the victim’s hair. The oral sex, which the accused asked for on several occasions, occurred more often than the anal intercourse. The victim was very afraid of his aggressor, who would sometimes hit him.

B.J. organized outings with the youth and his friends; he spoiled him with expensive presents, as well as cigarettes and alcohol. He became possessive of the youth and would sometimes prevent him from playing with his friends. This is a very typical case of "grooming". 3 . One time the victim’s mother saw the accused kiss her son on the mouth. She was upset and did not hesitate to tell B. J. that his behaviour was inappropriate. The victim revealed the sexual abuse that he had repeatedly suffered after B.J. was charged with committing an assault in front of witnesses who alerted the police. B.

J. pleaded guilty to this assault charge and was granted a conditional discharge. In October 2009, the victim fully disclosed the sexual abuse he had suffered to his mother. SEXUAL BEHAVIOUR REPORT 4 . After finding B. J. guilty, I made an order pursuant to the Mental Health Act for an assessment to be completed regarding B. J.’s sexual behaviour.

Doctor Bourget concluded that he met the diagnostic criteria for the following disorders: Axis I - pedophilia, sexually attracted to girls and boys, non exclusive type - major depressive episode in partial remission Axis IV - psycho-social problems: outstanding legal proceedings, past abuse, social isolation 5 . He is 41 years old, the father of two 14-year-old girls, and has been separated from their mother for 8-9 years. He admits his actions but his version of the facts differs from that of the victim . Dr.

Bourget indicates that he "explains that the youth had sexualized behaviour and that he had initiated sexual incidents". Despite his plea of guilt "he insists that he did not want to have sexual contact with the victim" and that he did not "initiate the contact" and he "never derived any sexual pleasure from this contact". In my opinion, this is a pedophile who is incapable of accepting full and sole responsibility for the prolonged sexual abuse of this child.

He may want to convince himself that he was not the aggressor, but to me his words are extremely alarming; they clearly show that he poses a risk of re-offending because of the inappropriate reasoning he still maintains. I conclude, even after his guilty plea, that this is purely the fantasy of a pedophile. 6 . He saw a psychiatrist for a major depressive episode in 2008, and also in 2010 for a major depression with longstanding generalized anxiety disorder. He claims to have been the victim of sexual abuse as a child and adolescent by a member of his family.

He says that his libido is weak and he denies having "any arousing sexual fantasies or sexual impulses relating to children. He denies any sexual behaviour directed towards children, other than that set out in his version of these events". The results for the standardized

assessments are found at pages 5-6 of the report. His results on the Bumby questionnaire reveal the presence of certain cognitivedistortions supporting rape and sexual behaviour towards children. Furthermore, the results of the “Paulhus Deception Scale” show thathe has a tendency to respond to questions in such a way as to put himself in the best light. He underwent the physiological peniletumescence test. His response is heterosexual and homosexual. His results were "significant" on the heterosexual and homosexualpedophilia indexes. He thus has pedophilic vulnerability. 7. Dr.

Bourget also notes the presence of cognitive distortions supporting rape and deviant sexual behaviour towards children.She concludes that "the diagnostic criteria for pedophilia are met". She stresses that he is sorry for his actions and that he says he iswilling to undergo therapy for his deviant sexual issues. PRE-SENTENCE REPORT 8. This report reveals that B.J. had a difficult childhood, including physical and sexual abuse at the hands of family members.He did not bring any complaint. Unfortunately, this is often the case in this court when dealing with sexual offenders.

He has a goodrelationship with the mother of his children, despite their separation, and with his two daughters. He has no problems with drugs oralcohol. He is described as a friendly and sensitive man by those close to him, who are very surprised by the acts to which he hasadmitted. Once again, this dual personality profile is quite common with pedophiles, based on my 20 years of experience. Often family,friends and work colleagues are surprised when these sexual offences are revealed. They do not know the same person as did the youngvictim, J. H.

This is in fact the great risk that a pedophile such as B.J. presents to society, especially to a very vulnerable young personsuch as J.H., who has no father figure in his life. The sexual abuse of a child that includes breach of trust, as in this case, often involvesan adult who is known, loved and respected by the young person and/or his family. 9. Once again, during the preparation of the report, B.J. accepted responsibility only partially. He admits having sexuallytouched and having had oral sex with the victim, but "denies having forced the victim to do anything at all".

He describes his victim asbeing a "problematic" child who "lies and manipulates others to his advantage". He dares to claim that his victim "took advantage ofhim by forcing him to buy him clothes, shoes and other items". He claims that he approached the mother because the child wanted tocome and sleep with him on a regular basis. These claims are shameful and reveal the extent to which he continues to exhibit and evenreveal the cognitive distortions of a pedophile to those whom he wishes to influence for personal gain. The author of the reportconcludes that B. J.

"has a tendency to project blame onto the victim" by stating that J. H. was the instigator. Given his comments to thateffect to Dr. Bourget and to Probation Officer Tremblay, I conclude that the "remorse" he expresses is very superficial. He provided aletter to the court, apologizing "to the family for having hurt them". He says that he "blames nobody but myself; from my heart I amsorry" and that we will never see him in court again. He wants to start life anew with his daughters. 10.

The victim provided a moving victim impact statement that is at tab two of the book of documents provided by Ms Tansey-Miller for the Crown. At the request of counsel, we proceeded in both official languages. J. H. said: "my self esteem went away", "beingcalled names such as homo gets me very angry and emotional", "I am scared to be alone", "I am angry most of the time", "I have a hardtime trusting people", "I felt sick all the time, at times I just wanted to die", "hard time going to school", "I would take 8 to 10 showers aday because I felt dirty", "I don’t use public washrooms”.

Since suffering this abuse, he admits to having made some bad choices interms of his alcohol and drug use. He is addicted to cigarettes; he frequents people who are a bad influence on him; he becomes violenttowards others when he feels threatened. He ends his statement by saying:"I just want to be me again, happy and kind. The truth is Idon’t even know who I am anymore. I just want to go on with my life. I deserve respect and love and good things, just like everyoneelse does." 11. He is right.

This is without a doubt an impact statement that will be hard to forget; through its simplicity and honesty, itreveals the extent and seriousness of the violent and aggressive actions carried out by B.J. for his personal sexual pleasure. At 12, thisvictim was not able to fight off B. J.’s sexual assault, nor to consent. I completely dismiss B. J.’s claim that the child initiated or wantedthe anal intercourse or fellatio he had to suffer at the age of 12. His mother also provided a statement. She no longer trusts anyone andwhen she sees a van like the one B. J. drove, she becomes very nervous and agitated.

She had to take sick leave because she suffered a"breakdown and needed to get help for my son and myself". She blames herself for not recognizing the signs that were there and shefeels guilty and ashamed for having failed to protect her son. Her relationship with her son is no longer the same. She has lost 40 pounds.She sees the bad choices he is making and blames herself. She adds: "he needs to be the one in control because of everything he haslost... my son has become a very angry man and it hurts to see him hurting so much inside".

She adds: “he has suffered a great deal andhas lost his childhood, that's something he will never get back". Their words are among the most moving I have ever heard in court. Letus hope that the victim understands that absolutely nothing can justify this man’s actions towards him. He had the courage to bring acomplaint, and I admire the candour with which he described the harm done to him, and the major way his young life has been affected. POSITIONS ON APPROPRIATE SENTENCE 12. I have reviewed the decisions provided to me by counsel. I also recently sentenced an accused in the matter of R. v.

Taylorthat also involved a breach of trust situation on a vulnerable child, where an accused denied responsibility and pleaded guilty with noactual remorse. It is not necessary for me to summarize all of the caselaw. The Court of Appeal decision in the matter of R. v. D.D. (ON CA), 163 C.C.C. (3d) 471 is binding; it refers to a penitentiary term "of middle upper single penitentiary termsrepresenting the appropriate sentencing range for adult offenders in a position of trust who sexually abuse innocent young children on aregular and persistent basis over a substantial period of time". 13.

The Court however adds that lengthier sentences are required if there is also physical or psychological abuse. The factsbefore me are very similar to those in the decision of Justice Trotter in R. v, Goldsmith 2008 ONCJ 277 , [2008] O.J. No. 2416.This was the case of a young person with no father, whose mother had tried to give her son "a male role mode in his life". The sexualabuse evolved to fellatio and anal intercourse with a 12-year-old, as in the case at bar. The accused was also diagnosed to be a pedophileand had pleaded guilty.

The victim’s statement revealed that the accused’s behaviour "had a devastating impact on Mr. W.'s life", whoadmitted that he was "full of guilt, shame, denial" and that he, like the victim in the case at bar, had tried "to overcome the painfulmemories by using alcohol and cocaine". Justice Trotter remarks at paragraphs 28 & 29:

"As might be expected of a young boy, Mr. W. found acts of anal intercourse to be very painful. It was a severe violation of Mr. W's psychological and physical integrity. Anal intercourse with a child can only be characterized as a serious act of violence this is why our Court of Appeal considers anal intercourse to be serious aggravating factor in the abuse of children". "In committing these acts, Mr.

Goldsmith subverted the human dignity and physical integrity of a 12 to 14 year old boy, to whom he stood in a position of trust, to his own sexual needs instead of providing guidance and protection to an immature boy who had already suffered a great loss in his life,. Mr. Goldsmith used Mr. W's body to satisfy himself sexually. He was prepared to do this even at the cost of causing great physical pain". 14 .

Justice Trotter imposed a sentence of three years, taking into account the real remorse expressed many times by the accused during his therapy and the very restrictive conditions upon which that accused had been released from custody. In the case at bar, B. J. blames the victim entirely and maintains that he did not ejaculate during the repeated sexual abuse of the young victim. The conditions of his recognizance are not restrictive at all.

He is prohibited from communicating with the victim, from consuming alcohol, from being alone with any person under the age of 18 except in the presence of his surety, and from being at any parks or swimming pools frequented by young persons. These are not conditions that would lead me to reduce the sentence that should otherwise be imposed. 15 . The Crown asks for a period of incarceration of 4 to 5 years. She requests an order under section 161 (1) (

a) and (

b) for life, an order under

section 490.012 of the Criminal Code , a weapons prohibition under

section 109 of the Code . The Ontario Court of Appeal has on several occasions ruled on the issue of the appropriate sentence for cases of breach of trust involving the sexual abuse of a child and has specifically stated that a penitentiary term is required where young boys have been sexually abused over a prolonged period of time. In the case at bar, it is true that J.B. has admitted his actions and has pleaded guilty. This being said, I am sorry to find that he does not exhibit any real remorse.

He has attempted to blame the victim in his conversations with the two persons who were charged with assessing the risk he poses to society. In my opinion, he did so in an attempt to influence their recommendations to the court. When dealing with the abuse of a person under the age of 18, it is now very clear that the main consideration must be the principles of denunciation and deterrence. The duration of the abuse is acknowledged to be an aggravating factor. The type of sexual acts must also be considered.

In this case those are fellatio and anal penetration of a male between the ages of 11 and 12, who was also forced to perform fellatio on the accused, over a period of two years. 16 . Defence counsel asks for either a conditional sentence, or a sentence of two years less a day followed by three years probation. If it is necessary to send her client to the penitentiary, she asks for a sentence of two years.

The position put forward by the defence is not realistic in a case of repeated anal penetration and breach of trust where the victim is vulnerable because of his age and where the accused blames the child for the sexual acts that took place. The only mitigating factor is the plea of guilty by a person who does not really accept his responsibility, but only his actions. The comments made by Dr. Bourget and the probation officer reveal a man who admits his actions, but who seems to still have major psychological distortions.

He is a pedophile and he still endorses several cognitive distortions through which he attempts to blame others. It is very difficult for a court to give much value to his plea as a mitigating factor, given the comments he has made, either because he didn’t really accept the seriousness of his actions or because he was attempting to influence the opinion that Dr. Bourget and Probation Officer Tremblay would give with regard to his risk of re- offending. In my opinion, this risk remains a serious concern. 17 .

I conclude that the appropriate sentence is a penitentiary term of 4 years in addition to the 29 days he has already served. This is, in my opinion, the appropriate global sentence. This sentence is to be imposed concurrently on each of the two counts on which he has entered a plea. I order him to provide a blood sample for his DNA profile to be added to the National DNA database. I make a lifetime prohibition order pursuant to

section 109 of the Criminal Code . I impose an order that he abide by the terms of the Sex Offender Information Registration Act for a period of 20 years. I also make an order of prohibition pursuant to

section 161 of the Code for a period of 20 years. And, I issue an order in accordance with

section 743.21 of the Code prohibiting the offender from communicating with the victim during the period of detention. Reasons given on July 14, 2011 Signed: “Justice D. M. Nicholas”