R. v. P.R., 2016 ONCJ 69

COURT FILE No.: 15-7978 County of Middlesex DATE: 2016 · 02 · 03 CITATION: R. v. P.R. , 2016 ONCJ 69 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — P.R. Before Justice Wayne G. Rabley Heard on January 7th, 2016 Reasons for Judgment released on February 3rd, 2016 V. Decker ................................................................................. for the Crown J. Norris and M. Conway ............................................. for the accused P.R. RABLEY J. : INTRODUCTION 1 .

On April 28th, 2015 P.R. was arrested and charged with a number of sexual offences relating to an inappropriate relationship that he developed with one of his students. At the time of the offences, Mr. P.R. was a grade seven and eight teacher at a school in L[ … ]. He was released on an Officer in Charge Undertaking with a number of conditions including terms that he not have contact with the victim; that he not attend within 200 meters of her home or school; and that he not consume non-prescribed drugs. 2 . On May 5th, 2015 Mr. P.R. was seen in the vicinity of the school.

The police were contacted and conducted surveillance on the victim ’ s home the following day. Mr. P.R. ’ s vehicle was seen parked within 140 meters of the residence and he drove past the home before continuing on to the victim ’ s school. He was arrested and at that time was found with marijuana which he acknowledged he had been smoking. 3 . Mr. P.R. was charged with a number of Breaches and detained in custody. An Order was made under s. 515(12) that Mr. P.R. not contact the victim while in custody. He sent a letter to a colleague where he apologized for his actions and expressed his remorse.

He also included a comment designed to be communicated to the victim that he hoped that she was doing ok. It is agreed by both counsel that this letter contravened the s. 515(12) Non-Communication Order and can be taken into account on sentencing. 4 . Mr. P.R. was detained at his show cause hearing. He has been in custody since the date of his arrest on May 6th, 2015. He pleaded guilty to the charges before the Court and I must now decide what is a fit and appropriate sentence taking into account the various factors in aggravation and in mitigation of same. OVERVIEW OF THE CASE 5 .

The sexual offences are serious. I will provide a brief synopsis of the facts because counsel have spent a considerable period of time preparing an Agreed Statement of Facts which was filed with the Court and which is the basis of Mr. P.R. ’ s plea. In my view, these facts fairly state the circumstances of the offences after having reviewed the Exhibits that were filed in support of the pleas and which include the various forms of communication between Mr. P.R. and the victim who I will name as A.M. 6 .

I will then summarize the Victim Impact Statement provided by the parents of A.M and the Statement made by the accused on his own behalf. 7 . Counsel for Mr. P.R. has served and filed with the Court a Notice of Constitutional Challenge. It was argued by the Defence that I ought to adopt the reasoning of a number of Courts including the decision of Justice Weins in R. v. Dinardo, 2015 ONSC 1804 and hold that subsection 719(3.1) in conjunction with subsections 524(4) and (8), violate s. 7 of the Charter and is not saved by s. 1.

8 . If I were to follow the decision of Dinardo , it would be open for me to give Mr. P.R. enhanced credit at a rate of one and a half to one, for the time that he has spent in custody awaiting his sentence. According to my calculations, Mr. P.R. has spent 274 days in custody to this point. This would be the equivalent of a 9 month sentence. If he was given enhanced credit, he would receive the equivalent of 411 days in custody which would be the equivalent of a 13.7 month sentence. 9 .

Once the issue of enhanced credit is decided, it will then be my responsibility to determine what a fit and just sentence is for Mr. P.R. and then determine what ancillary orders sought by the Crown should be made. 10 . Counsel for the Defence submits that the appropriate sentence for Mr. P.R. is one of two years concurrent on the Sexual and Child Pornography offences and two months consecutive on the Breach charges. 11 . Counsel for the Crown submits that the appropriate sentence in totality for Mr. P.R. is between four to five years in the penitentiary. THE FACTS 12 .

At the time of the offences, P.R. was 40 years of age and was an experienced teacher having taught at his school for twelve years without incident. 13 . A.M. was 12 years of age when she began attending Mr. P.R. ’ grade seven class and 13 years of age at the time of these offences. 14 . Near the end of A.M. ’ s grade seven year, she began to disclose to Mr. P.R. that she was having personal issues. She advised him that she had been self-harming and showed him cutting marks on her wrist. Mr. P.R. informed his Vice Principal who then contacted A.M. ’ s parents. 15 . A.M. further confided in Mr.

P.R. as the year went on. She found it helpful to do so. Appreciating the sensitive nature of these issues, Mr. P.R. invited A.M. to write out her questions and to leave them for him, so that he could respond in writing to her. 16 . The relationship was supportive at first and Mr. P.R. responded appropriately to A.M. ’ s concerns. However, as the relationship continued, the communication between the two became flirtatious and then more romantic. Ultimately, it became highly sexualized. 17 . By the beginning of A.M. ’ s grade eight year, Mr.

P.R. and A.M. began exchanging intense declarations of love and clearly thought of themselves as a couple even though Mr. P.R. was married and had three children. 18 . A.M. referred to Mr. P.R. as the “ love of my life ” and the “ only thing that keeps me from cutting and breaking down. ” By this point, Mr. P.R. had clearly crossed the line. He wrote romantic poems to A.M. telling her that she was “ the most beautiful girl in the world and I love you so so much in every single way. ” Mr. P.R. also wrote to A.M. outlining explicit sexual fantasies that clearly meet the definition of child pornography. 19 .

The relationship continued to become more sexual. Images and videos were requested and sent by each of the two parties to each other. For example, A.M. forwarded images of her bare breasts and videos of herself digitally penetrating her vagina. Mr. P.R. sent a number of images including pictures of his erect penis as well as video clips of himself masturbating. 20 . These events took place sometime in July of 2014 before A.M attended grade eight. During the same time, the two began to meet outside of school and engage in sexual activity. On one occasion, Mr. P.R. picked up A.M. and they kissed.

After this meeting, they met further where they again kissed and then fondled one another above their clothing. 21 . The meetings continued and the sexual contact intensified. In October of 2014, Mr. P.R. brought A.M. to his home. They removed their clothing and engaged in sexual relations to the extent of oral sex and digital penetration of A.M. ’ s vagina. 22 . In December of 2014, Mr. P.R. brought A.M. to a hotel where he had rented a room. They engaged once again in the same type of activities. There were a number of other meetings all the way up to April of 2015 where this type of conduct was repeated.

A.M. denied that the two ever engaged in sexual intercourse. Having said that, Mr. P.R. certainly included vivid details about the potential of sexual intercourse in the written fantasies that he forwarded to A.M. 23. The relationship was discovered on April 27th, 2015 when the Vice Principal of the school located Mr. P.R. with A.M. in the closet of the gymnasium of the school. The VP reported this to the Principal who confronted Mr. P.R. and then ultimately suspended him from the school. The police became involved and through searches of various electronic devices and Mr.

P.R. ’ office, they discovered the nature and extent of the relationship as well as the evidence that has formed the basis of the prosecution against the accused. VICTIM IMPACT STATEMENT 24. A.M. ’ s parents have filed Victim Impact Statements. As one would expect, they speak about betrayal and the emotional trauma that has been caused to a family that was already in crisis because of the mother ’ s struggle with cancer. I am told that the parents and A.M. are undertaking counselling but that there is still a long way to go.

Mom asks the very relevant question “ Will she ever find a healthy, loving relationship? ” Dad expresses his hope that Mr. P.R. “ has an opportunity for counselling and rehabilitation, so that upon his release he understands that he should never contact A.M. ” 25. The real concern is that A.M. is still emotionally connected to Mr. P.R. and might welcome further contact upon his release. Clearly the Court must do what it can to sever this relationship in such a way that there can be no hope of future contact between these two.

STATEMENT BY THE ACCUSED 26. After hearing the Victim Impact Statements, Mr. P.R. provided his Statement to the Court. It is clear that this man hasgenuine remorse for his actions and has a lot of insight into his own behaviour. In the emotional presentation of his Statement, Mr. P.R.said as follows: “Over the months since my arrest, I have come to the painful realization of how awful and shameful my actions were. I have come tounderstand my selfishness, my self-centredness, my poor decision making, and the trust I have breached.

My irresponsible actions haveseriously harmed a child, possibly for the rest of her life. I encouraged her and normalized this relationship in her eyes. All the whileshe looked up to me and trusted me. She was just a child. What happened was my fault and mine alone.” 27. In my view, Mr. P.R.’s insight into his own conduct and his expression of remorse is important. It is not uncommon foran accused who is about to be sentenced to voice an apology that is really just designed to convince the presiding the Judge that he or sheis going to change so that they can receive a lower sentence. I accept that Mr.

P.R.' is a true reflection of his own self-analysis and hisdesire to change. As such, it gives me the confidence to believe that he genuinely knows that what he did was wrong and that he isprepared to take steps to ensure that it does not happen again. PRE-TRIAL CUSTODY AND ENHANCED CREDIT FOR SAME 28. In 2009, Parliament passed the Truth in Sentencing Act. It is clear that the intention of Parliament was to limit the amountof credit that an inmate would receive on sentencing, to be one day’s credit for each day of pre-trial custody. Section 719(3.1) reads asfollows: 26. 719.

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into accountany time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of oneday for each day spent in custody.

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unlessthe reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custodyunder subsection 524(4) or (8). 27.

The issue of what “if the circumstances justify it” was the subject of much litigation until the Supreme Court of Canadadecision in Summers, 2014 SCC 26 , [2014] 1 S.C.R. 575 (SCC) where it was decided that generally an accused person ought toreceive credit on the basis of one and a half to one to recognize a number of factors including the overcrowding in remand centres, thelack of rehabilitative programs and the need to address the inequities in sentencing created by earned remission and parole. 28.

The legislation specifies that one of the exceptions to this general rule is where an individual is detained under subsection524(4) or (8) for breaching his bail. The Ontario Court of Appeal confirmed in R. v. Akintunde, [2015] O.J. No. 4614 that where bailhas been cancelled pursuant to s. 524 that the accused will only receive credit on a one for one basis. 29. Mr. P.R. was detained in custody on all matters after he was charged with the Breaches and was detained after a contestedshow cause hearing.

According to Akintunde, he should receive credit on a one for one basis for the time he has spent awaiting his pleaand sentencing, unless I find that the legislation violates

section 7 of the Charter and is not saved by

section 1. 30. Counsel for Mr. P.R. have brought an Application requesting this relief on behalf of their client and argued that it offendsthe principle of proportionality. I have been provided with a number of cases by both counsel on the issue and I will briefly review them. 31. The leading case for the Defence is R. v. Dinardo, [2015] ONSC 1804 , a decision of Justice Weins of the OntarioSuperior Court of Justice. Justice Weins set out a number of examples which illustrate that an offender’s sentence would be impacted bytheir ability or inability to secure bail following a breach.

Her Honour found that: The impugned provision offends the principle of proportionality, including the concept of parity, because itmakes the determina tion of a fit sentence dependent upon an irrelevant factor – the ability of theoffender to get bail. As a result, offenders caught by this provision (i.e., those arrested for reasons listed in s.524(4) or (8), and who have a bail hearing and are unable to show cause) will ultimately serve a longer sentence thanidentical offenders in identical circumstances in the situations where the similarly situ ated offender isable to show cause and secure his/her release. 32.

Justice Weins dealt with the Crown’s submission that there should be a distinction made for offender’s who placethemselves in jeopardy because of their bad behaviour. Her reasoning was that: Importantly, the differential treatment in this case does not arise be cause of the offender’s bad behaviour whileout on bail, as was con tended by the Crown. This is because those who breach their re cognizance or commit indictable offences while on release may still be able to secure their release if they are able topresent a suitable plan of release and to therefore show cause for release.

The ability to do so may berelated to factors entirely beyond the offender’s control, such as whether s/he has friends or family willing to act as a suretyor whether s/he is able to obtain sufficient bail monies to secure his or her release. 33. Her Honour then concluded: As noted above, the clear language of the impugned provision is not to deny enhanced credit because of badbehaviour, but because of the in ability to obtain bail, which is entirely irrelevant to the determination of a fitsentence.

For this reason, the provision engages an offender’s liberty interest in a manner not proportionate to thegravity of the of fence or his/her degree of responsibility. It therefore violates s.7.

Justice Weins then did an analysis regarding

section 1 and ultimately concluded that not only did the operation of s. 719(3.1) inconjunction with s. 524(4) and (8) violate s. 7 of the Charter but that it was not saved by s. 1 of the Charter. 34. Dinardo was followed in R. v. Gill, 2014 ONSC 6184, R. v. Buczel,2015 ONCJ 378 , [2015] O.J. No. 3722 and R.v. Jupiter, 2015 ONCJ 376 , [2015] O.J. No. 3729. Then in November of 2015, the Superior Court of Justice released twoseparate Judgments on the same issue. 35. In R. v. Hussain, 2015 ONSC 7115, Justice Edwards declined to follow Justice Weins and dismissed the CharterApplication put before the Court.

Justice Edwards relied upon the Yukon Court of Appeal decision of R. v. Chambers, 2014 Y.P. No. 70and the Ontario Court of Appeal decision of R. v. Akintunde, [2015] O.J. No. 4614 as authorities supporting his position that he oughtnot to follow Dinardo. 39. At paragraph 92 of Justice Edward’s decision he found that: The misconduct on release exclusion found in s. 719 (3.1) of the Code does not offend the principle ofproportionality, because the sentencing process is not dependent upon factors that are irrele- vent tosentencing. Section 719(3.1) is not triggered by a bail de- termination.

Rather, and this in my view is the mostimportant factual distinction, it is triggered by the offender’s own choices and deeds as found bythe sentencing judge. 40. In my view, Akintunde very much stands for the proposition that 719(3.1) is triggered by a bail determination and not byother factors. Therefore, with the greatest of respect, I do not agree with Justice Edward’s analysis and find the logic of Justice Wein’sreasoning on this issue to be compelling.

Also, between the time that Justice Edwards heard submissions from counsel and the time thathe delivered his decision, Justice Dawson released another decision in the case of R. v. Norman, 2015 ONSC 6849. 41. The Crown also argued Chambers and Akintunde before Justice Dawson. His Honour did not follow Chambers and foundthat it dealt with sections 12 and 15 of the Charter and “was ultimately decided on the point of statutory

interpretation, which means thatthe Charter analysis is technically obiter”. Justice Dawson also found that the Akintunde decision did not apply because the Court ofAppeal specifically noted that the constitutionality of the provision was not in issue and that the case turned on the

interpretation of thesections and the process involved in determining whether enhanced pre-trial custody was applicable. 42. I agree with Justice Dawson’s analysis of those decisions as well as his conclusion that the provisions which exclude aCourt’s ability to consider enhanced credit violate

section 7 of the Charter and is not saved by

section 1. 43. I therefore agree with the submission made by the Defence that by way of judicial comity I can rely upon the decision ofJustice Weins in Dinardo and those cases that have followed it. I do so and make similar findings which allow for consideration to bemade whether or not Mr. P.R. should be entitled to enhanced credit for his time in custody. 44. In addition to the general propositions set out by the Supreme Court in Summers, I have an affidavit sworn by Mr. P.R.setting out his record of his stay at the Elgin Middlesex Detention Centre.

Without reviewing the document in detail, I am satisfied thatthe conditions in the remand centre are difficult and that rehabilitative programs are very limited. 45. Therefore, adopting the reasoning of the Supreme Court in Summers and accepting the evidence filed on behalf of theaccused, I would allow Mr. P.R. enhanced credit on the basis of one and a half days for each day served in pre-trial custody. THE APPROPRIATE RANGE OF SENTENCE

Section 718 of the Criminal Code sets out the principles to be applied by a Court when sentencing individuals for criminalacts. In addition to the general provisions that need to be considered in a case such as this, subsections 718.01 and 718.2(ii.1) need to begiven particular attention and consideration.

They state as follows: 718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall giveprimary consideration to the objectives of denunciation and deterrence of such conduct. 718.2(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteenyears, CROWN POSITION ON SENTENCE 46. The Crown argues that the starting reference point for a sentence for this type of offences is the Ontario Court of Appealdecision in R. v. D.D., (ON CA), [2002] O.J. No. 1061 (Ont. C.A.). 47.

In that decision, Justice Moldaver speaking for the Court set out the objectives when sentencing those convicted of sexuallyassaulting children: “We as a society owe it to our children to protect them from the harm caused by offenders like theappellant. Our children are at once our most valued and our most vulnerable assets. Throughout their

forma tive years, they are manifestly incapable of defending themselves againstpredators like the appellant and, as such, they make easy prey. People like the appellant know this only too well andthey exploit it to achieve their selfish ends, heedless of the dire consequences that can and often dofollow.” 48. In D.D. the Appellant was found guilty after a trial of befriending “four young boys ranging in age from 5 to 8 years andfor periods of time ranging from 2 to 7 years, he regularly and persistently engaged them in all manner of sexual activity.

This includedacts of masturbation, group sex and anal intercourse.” 49. Justice Moldaver concluded that: “As a general rule, I believe that upper single digit to low double digit penitentiary terms are called for in these circumstances. Thus, theglobal sentence of nine years selected by the trial judge in this case was, in my view, within the appropriate range.” 50. The Crown argues that the appropriate range for me to consider for Mr. P.R.’s offences is that between 4 to 5 yearstaking into account the mitigating factors which the Crown fairly acknowledges. 51.

In addition to D.D., the Crown relies upon a number of cases including R. v. R.T.M., 2008 ONCA 47 , [2008]O.J. No. 229 (Ont. C.A.). That case also involved multiple victims who were much younger in age as they were 4, 5 and 7 years of age. The Court of Appeal emphasized the “extreme youth” of the victims as well as the lengthy period of time over which the offencesoccurred (5 years) and increased the sentence from one of 2 years (including 1 year of pre-trial credit) to 5 years. 52. In R. v. S.H., [2015] A.J.

No. 522 Justice Henderson of the Alberta Provincial Court dealt with a case where the offenderwas 23 years of age and the victim was 15. S.H. was in a position of trust over the victim and repeatedly provided her with alcohol andmarijuana. He ultimately engaged in a number of acts of sexual intercourse with the victim including anal intercourse which had “longlasting and devastating consequences for her.” In addition to this, the offender had a number of images and approximately a dozenvideos of the complainant depicting her in various sex acts including fellatio upon the accused.

After reviewing the various principles,Justice Henderson imposed a global sentence of 6 years. 53. In W.Y., 2015 ONCA 682, the Crown sought to appeal a five year sentence imposed on father who sexually assaulted his14 year old daughter. The acts included full sexual intercourse daily after permitting the victim to consume alcohol to the point whereshe was sick. The accused also had two dated convictions for sexual offences against children.

After considering the circumstances ofthe case and concluding that the accused’s conduct was “insidious” the Court of Appeal declined to increase the sentence to one of eightyears as requested by the Crown. 54. In P.M., [2012] ONCA 162 (Ont. C.A.) the sentence imposed was that of six years. Over a period of 13 months, P.M.had forced anal and vaginal intercourse upon his daughter who was 13 and 14 years of age at the time. The accused also had asignificant collection of child pornography including videos of forced vaginal and anal intercourse.

Notwithstanding the facts and theCourt’s view that the sentence of six years was lenient, the sentence was not disturbed on Crown Appeal. 55. I have had an opportunity to review all of the Crown cases and found them to be helpful. There is no question that in theordinary course of things that the range of sentence proposed by the Crown is appropriate for offenders who commit the types ofoffences described in the cases submitted. DEFENCE POSITION ON SENTENCE 56.

The Defence acknowledges the serious nature of the charges before the Court and that denunciation and generaldeterrence are the primary considerations on sentence. It is respectfully submitted though, that Mr. P.R.’ case is somewhat differentfrom the cases relied upon by the Crown because it does not contain the aggravating factors prevalent in many of those cases includingforced vaginal and anal intercourse, violence and threats of violence, the abuse of multiple victims, the use of alcohol, the lengthyperiods of inappropriate conduct and the more youthful ages of many of the victims. 57.

It is acknowledged on behalf of Mr. P.R. that his conduct was appalling and inexcusable. Although the relationshipbetween himself and A.M. began innocently and appropriately, Mr. P.R. recognizes that he took advantage of a young and trustingstudent. She looked to him for emotional support. He acknowledges that the fatal error was that he failed to manage the relationshipproperly and within the bounds of the law and that he did so to satisfy his own needs. He should have seen the red flags as they werewaved before him. Instead, he turned a blind eye and in doing so, committed a serious breach of trust. 58.

For that I am told, he will never teach again and I will certainly make an Order which will ensure that result. No doubtthat is relief for the parents of A.M. and our community, but it is also a factor to be taken into account given the punitive nature of losingof one’s profession and livelihood. It is the Defence position that significant denunciation and deterrence will have taken place as aresult of this consequence and the publicity that it will no doubt draw. The real question for me to decide is what additional sanctionsneed to be given and that justice not only be done but that it be seen to be done. 59.

The Defence argues that the clear breach of trust and youthful age of the victim are significant, but that these are the onlyreal aggravating factors in this case. It agrees with the Crown position that the lack of other aggravating factors is not something thatmitigates Mr. P.R.' sentence, but that this is something that should influence a Court to consider a lower range when factoring into it, themitigating circumstances. 60.

By way of mitigation of sentence, I agree that I should consider the following: 1. the plea of guilty and the fact that a conflicted young victim need not testify in such an emotionally difficult a case; 2. the genuine remorse of the accused;

3. the tremendous support from family and community as evidenced by the case brief of letters and the significant numberof individuals who have turned out to support Mr. P.R. throughout these proceedings; 4. the willingness of Mr.

P.R. to be involved in treatment and his desire to attend at the Ontario Correctional Institute inorder to undertake such counselling; 5. his potential to return to the community after he has paid his debt to society with supports in place for him so that he canlive a life without repeating these terrible acts; 6. a positive Pre-Sentence Report; 7. the lack of any criminal record or previous related conduct. 61. I agree with the Defence position that while rehabilitation should play a secondary role in a case such as this, it cannot beforgotten. In this case, Mr.

P.R. committed an inexcusable error in judgment but the pathway to that error was unique and his prospectsfor rehabilitation are excellent given the support that he has from his wife, family and others, his genuine remorse, his desire to changeand his ability to do so. 62. When I review the Agreed Statement of Facts and the materials in support of it, I agree with the submission that Mr. P.R.appears to be a man who made terribly poor choices which lead to these sexual offences rather than a man who is a sexual predatorlooking for opportunities in the community to partake in his sexual deviations.

In my view, this is an important distinction. 63. The Defence acknowledges that D.D. is the starting point for consideration in any sentencing of this nature. However, itargues that a Court should not be ‘straightjacketed’ by a range and that sentencing is a highly individualized process that takes intoaccount the gravity of the offence, the offender’s degree of responsibility and the circumstances of the offence. 64. The Defence also submits that 2 years is an appropriate sentence for Mr. P.R. given the unique circumstances of hiscase.

I acknowledge that there are not many cases which support this very low range of sentence, but in fairness, there are some. 65. In R. v. R.F.G., 2006 NBCA 104 , [2006] N.B.J. No. 511, the New Brunswick Court of Appeal dealt with a 27year old teacher who had sexually abused her 13 year old student. The accused had taken the young boy to her brother’s apartment andprovided him with alcohol before involving him in acts of fellatio and intercourse. This incident occurred only once and the accusedpleaded guilty.

Initially RFG was given a Conditional Sentence but upon appeal, the Court found that this did not adequately address thegravity of the offence and increased the sentence to one of 2 years less a day. 66. In R. v. James Melnick, 2006 (unreported) my sister Judge D. Livingstone dealt with a fairly similar situation to the onebefore this Court. The significant difference was that it was a joint submission by counsel. It is also difficult to know what the factswere that Justice Livingstone made her findings of guilt upon as they were not included in her judgment.

Instead, I have been given otherdocumentation including the decision of the Law Society relative to Mr. Melnick’s application for a license to practice. This is onlysomewhat helpful. 67. It would appear from that background that Mr. Melnick was a teacher and that the victim A.S. was his 14 year old formergrade 8 student. A.S. confided in the accused and their relationship developed such that each proclaimed to love the other. There wascorrespondence by email which became increasingly suggestive and inappropriate. In total there were over 500 emails exchangedbetween the two parties.

Physical sexual activity between Mr. Melnick and A.S. occurred over a two month period that involved variousforms of sexual touching and oral sex. 68. After hearing submissions and outlining the mitigating and aggravating factors, Justice Livingstone imposed a 6 monthsentence in custody in addition to a 15 month conditional sentence. 69. There is a striking similarity between Melnick and the facts before me. The Defence acknowledges that a ConditionalSentence is no longer available but relies upon the decision as one that should influence me given that it is from this jurisdiction.

However, given that the case involved a joint submission on facts that I am not certain of, I cannot place much weight upon it. 70. The Defence also provided me with other decisions supporting a lower penitentiary sentence but these differ in facts tothe case before me and so other than the discussion of general principles, I also do not find them very helpful in my determination. 71. Finally, in addition to the substantive charges, there are two counts of Breach of Recognizance.

Although I have notreviewed the respective positions with respect to these charges, counsel are not far apart in their positions, with both advocatingconsecutive sentences of a number of months. ANALYSIS 70. This is a very difficult decision. It would be easy to simply defer to the general range of sentence suggested by theCrown and pick the lower end of that range because of the mitigating factors in this case. I am mindful that it is the Court’sresponsibility to impose fit sentences which will not only reflect the seriousness of the crime’s consequences but also the moralblameworthiness of the offender. 71.

It is cases like this that impact upon our community. It has often been said that our children are our greatest resource. Sooften it is the case that the victims of this kind of abuse endure lifelong consequences and tragically, so often the cycle repeats itself. Courts must send a clear message to offenders that no matter what their background and support, they will suffer the consequences oftheir poor behaviour and that a serious sentence will follow any finding of guilt. 72. Having said that, Courts must also be cognizant that they are dealing with the lives of others and that those individuals

who are being sentenced by the justice system will ultimately return to their community upon the completion of their time in custody. Care must be taken not to crush offenders, especially when the prospects of rehabilitation are good. Otherwise our system of justice takes away the human spirit and releases individuals back into society who are bound to reoffend once again. No one wants that. 73. I find that Mr. P.R. is one of those individuals whose circumstances are worthy of consideration. He pleaded guilty and gave a very sincere and insightful statement of remorse.

He is an intelligent man who will no doubt learn from his mistakes and it is likely that he will not put the community once again in danger. He has a family, including a wife, who has stood behind him in the most troubling of times and I am satisfied that they will be there to help him return to the community in a meaningful way when the time comes. 74. I have had the opportunity to read the Supreme Court of Canada’s decision in R. v. Lacasse, 2015 SCC 64 .

As always, our Supreme Court shows wisdom and clear thinking when it comes to the issues that confront Courts wrestling with the different principles of sentencing. With respect to whether or not a judge should feel constrained to impose a disposition that is within a range of sentence, the Supreme Court has said as follows: “Where sentencing ranges are concerned, although they are used mainly to ensure the parity of sentences, they reflect all the principles and objectives of sentencing.

Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered “averages ”, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case. ” 75.

The Ontario Court of Appeal echoed these same sentiments in D.D. where Justice Moldaver said: “Before going further, I wish to emphasize that the ranges which I have identified are not meant to be fixed and inflexible. On the contrary, sentencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. The suggested ranges are merely guidelines designed to assist trial judges in their difficult task of fashioning fit and just sentences in similar cases. ” 76. I appreciate this guidance.

I also apologize for quoting extensively from others, but in my view, it is hard to state the applicable principles as eloquently as they have done and in particular Justice Wagner in Lacasse, where he stated: “There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded.

The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender ’s degree of responsibility and the specific circumstances of each case. ” 77.

I believe this to be a unique case that should be decided outside of the normal range of sentencing. In my view, society’s best interests are served by having Mr. P.R. receive the counselling and rehabilitative programs in a facility such as the Ontario Correctional Institute. I recognize that it is also important that I make an Order that protects A.M. and maximizes the time that Mr. P.R. is required to stay away from this vulnerable young victim. Her family needs this protection and whether or not she appreciates it, she needs it also.

A three year probation term allows me to do that and it also protects society’s need to ensure that Mr. P.R. continues his counselling to ensure that he is appropriately rehabilitated. 78. No doubt Mr. P.R. needs to pay the price for his wrongdoing but society will be better off if he can return to our community and play a positive role in the future and not a negative one. Although a sentence exceeding two years must be mandated in this case, Mr. P.R. is in the fortunate position of having significant pre-trial custody which I will enhance for the reasons given. 79.

When I balance all of the factors in this case, it is my view that the appropriate sentence for the substantive charges should be one of 30 months incarceration. There will be sentence of 30 months concurrent on the Sexual Assault and Sexual Interference charges and 12 months concurrent on the Child Pornography count. Given all of the circumstances, I will impose a sentence of 3 months consecutive on the first Breach charge and 3 months concurrent on the second. 80. The total sentence will therefore be 33 months incarceration. I will give Mr.

P.R. enhanced credit for the 9 months of pre- trial custody that he has and credit 13 months against the Sexual Assault and Sexual Interference charges. He will therefore serve a total of 20 months incarceration commencing today. I recommend that he serve his sentence at the Ontario Correctional Institute and order that a copy of the PSR and my reasons accompany the warrant of remand to the detention centre. ANCILLIARY ORDERS PROBATION 81. There will be 3 years of probation to follow.

As I have previously said, one of the reasons that I can use to justify this lenient sentence is the fact that I can provide victim safeguards for the young lady involved and her family. I am told that A.M. is still working through counselling and has divided loyalties at this time. The Court must provide as much protection as possible to A.M. as this vulnerable age and a 3 year probation should provide peace of mind and security to her family. 82. The terms of probation will be as follows: 1. Keep the Peace and be of Good Behaviour; 2. Appear before the Court when required to do so;

3. Report to a Probation officer within 2 working days of your release and thereafter as designated by your Probation Officer; 4. Notify the court or probation officer in advance of any change of name of address and promptly notify the court or probation officer of any change in employment or education; 5. Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer; 6.

You shall sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed; 7. You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed; 8. Do not associate or communicate, in any way, by any physical, electronic or other means, or be in the company of A.M.; 9.

Do not be within 500 metres of any place where you know that A.M. lives, works, goes to school, frequents or any place you where A.M. may be except for required court attendances except with the written permission of your probation officer for exceptional circumstances; DNA 83. I will make an Order that Mr. P.R. provide a sample of his DNA regarding all charges. It is my view that in these circumstances, the community interests outweigh his privacy interests. PROHIBITION ORDER 84. I will make an Order prohibiting Mr.

P.R. from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substances for a period of 10 years pursuant to s.109 of the Criminal Code . S. 161 ORDER 85. The Crown submits that Mr. P.R. is a sexual predator and therefore the community needs the protections set out in s. 161 of the Criminal Code . The Defence submits that an Order under s. 161 would be problematic for Mr. P.R. given that: (

a) his children are still young and he will need to be able to take them to public places where other young children will be found; and (

b) that computers are a fact of life and that to restrict Mr. P.R. from the use of this technology may not only be unworkable, but not necessary given the facts of this case. 86. I am of the view that an Order should be made relative to s. 161 (

b) for a period of 10 years. During that period of time, Mr. P.R. will 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. 87. I decline to make the Orders under subsections (

a) and (

c) of s. 161 . I do not see Mr. P.R. as an individual who was either, through means of a computer or through his attendances in public places, looking to develop and exploit relationships with young people under the age of 16. The facts do not support this finding. 88. This situation was unique and without unduly repeating the circumstances, I find that the relationship that developed between Mr. P.R. and his student A.M. was unique in its development. As I have said many times throughout this judgment, it was clearly poor thinking and for that Mr.

P.R. will be held accountable, but I do not see that the public is at risk by allowing this man to have access to a computer or to be in public places where young people under the age of 16 may be found. I make the distinction between this man and an individual who is a sexual predator looking for victims to take advantage of. Again, I am of the view that this is an important distinction. SOIRA 89. The Crown seeks an order under s. 490.012 of the Criminal Code that Mr. P.R. register with the Sex Offender Registration Information Act for life. I agree and therefore make that Order. 90.

Finally, the Crown having proceeded by Indictment regarding the three substantive offences, there will be a Victim Surcharge on each count in the amount of $200. On the two Breach charges the Crown proceeded Summarily and the Victim Surcharge on each count will be $100. The total is therefore $800. Obviously Mr. P.R. cannot pay that amount of money for the foreseeable future. I will orally grant an application for the extension of time to make payment of these Surcharges and give him two years to pay them. 91. I believe that I have addressed all of the issues raised before me.

I would very much like to thank counsel for their ability to work together to narrow down the issues in this case, formulate the facts into a workable synopsis and for the excellent presentation that was made on behalf of both sides. Released February 3 rd , 2016. __________________________

Justice W. G. Rabley