R. v. Ward, 2011 ONCJ 533

Information No.: 10-2672 Citation: R. v. Ward , 2011 ONCJ 533 ONTARIO COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Crown -and- SCOUTER WARD Accused REASONS FOR JUDGMENT APPEARANCES: G. Orsini Counsel on behalf of the Crown G. Smits Counsel on behalf of the Accused Date of Plea: May 24, 2011 Offences: Sexual Interference Reasons for Sentencing dated : Thibideau, Prov. J.: (Written) [ 1 ] On May 24, 2011 Scouter Ward pled guilty to the offence of touching with his mouth for a sexual person a person under 14 years of age named in the information contrary to

Section 151 of the Criminal Code . The matter was proceeded with summarily. [ 2 ] The facts read in at plea and agreed upon at that time resulting in a finding of guilt were a combination of facts put to the court by the Crown and the defence.

Crown Facts [ 3 ] The thirteen year old victim has an emotional disability and functions at the level of an 8 year old. On the day in question, October 10, 2010, the child was having dinner with Mr. Ward when Mr. Ward took him upstairs to his bedroom, where he laid the victim on the bed, removed his pants and began performing oral sex on him. [ 4 ] The Crown evidence does not indicate how long the incident went on, who was present other than the two persons described and how the event ended. The incident was reported to the police by the child victim, who was under that statutory age for consent.

It is implied in the Crown evidence that otherwise consent was present. The Defence Evidence [ 5 ] The victim and his older brother came to the Ward residence together. The brother told the police that the victim told his brother that he was going to ask Mr. Ward for a blow job. In fact the attendance at the residence was for that purpose. There was conflicting evidence read in. On the one hand the defence asserted that the brother said Mr. Ward was known to the victim, including some contact several times in the past.

On the other hand the defence asserted that the victim had not actually been in the residence before, but Mr. Ward may have seen him casually outside the premises. [ 6 ] The defence evidence continued. The victim asked for a house tour, laid himself on the bed and pulled his own pants down, at which time Mr. Ward “made a terrible mistake in judgment”. Drugs and alcohol were not a factor in this offence. [ 7 ] Upon hearing these two combined sets of facts the court pointed out to defence counsel an obvious difficulty for his client – either there had been previous experience between the two or Mr.

Ward had a reputation in the community that led the victim to go to seek out what he sought. The explanation from the defence was that the residence was known to be “gay positive in nature” and the victim may have realized that. All of these combined Crown and Defence facts formed the totality of the facts on which the finding of guilt was founded. Post Plea History [ 8 ] The matter returned to court on August 25, 2011 at which time the Pre-Sentence Report was received and a formal sentencing hearing with oral evidence from the Probation Officer proceeded.

Significantly a goodly part of the information received in the Pre- Sentence Report effectively re-wrote the accepted facts at the time of plea. Part of the probation report chronicled an interview with Mr. Ward’s common-law partner of some 21 years. The interview with the Probation Officer, confirmed by court testimony, was that the partner provided contradictory information about his lifestyle with Mr. Ward, their relationship and the events surrounding the 1996 conviction for sexual exploitation. [ 9 ] The partner described a monogamous relationship, but when informed that Mr.

Ward said that they had sex with other partners, he agreed, but stated all partners were men over 25 years of age. This latter statement was apparently volunteered without reference to any question from the Probation Officer gathering information for the report. This information directly contradicted the partner’s statement in 1996 that Mr. Ward would always be attracted to young males. In fact the victim in the 1996 event had to be 16 or 17 years of age in a relationship of trust or dependency with respect to Mr.

Ward for the offence to be made out. [ 10 ] The Probation Officer formed the opinion that the partner was coached as to his beliefs regarding Mr. Ward’s sexuality based upon the discrepancies between the old opinion from 1996 and the current and changed opinion with respect to monogamy in 2011. If there was coaching it was not very satisfactory. To attribute to Mr. Ward a direct attempt to influence the input of his partner in the Pre- Sentence Report process based upon these items of information would be problematic.

However there is also the written statement of the partner dated December 16, 2010 filed as Exhibit 6 in the sentencing hearing. [ 11 ] A new set of alleged facts arose from that document as follows:

1) Through happenstance both brothers were invited by Mr. Ward to dinner at the residence of Mr. Ward and his partner; 2) The older brother temporarily left the house during the visit; 3) While the older brother was absent the victim and Mr. Ward talked in the living room resulting in “a tour of the rest of our house”. 4) The victim, Mr. Ward and another person went upstairs; 5) Some significant time later the partner went upstairs and paused at the bedroom door opening; 6) The partner observed the victim on the bed, shirt pulled out, his hand on his own penis; 7) Mr.

Ward went over to the bed and lay down beside the victim, smiling in a joking way pulled down further the underwear of the victim, who had a little erection. Mr. Ward then put his lips on the victim’s penis, moving his head three times. It stopped. Pants were pulled up and everyone went down to join others in the dining room for dinner. Everyone was fine, no one was upset. [ 12 ] There are clear difficulties with this statement.

The court was led to believe in the strongest of terms that the evidence of the Probation Officer about the contradictions in the information supplied by the partner was easily explained by the fact that the partner was legally deaf, used sign language, and was not perfect in English because of his disability and his first language was not English, resulting in a significant lack of fluency in English. [ 13 ] The Exhibit 6 letter is typed, with the written signature of the partner on it and is clearly a document prepared by someone quite conversant with the English language – proper spelling, proper grammar and proper syntax.

There are only two possible conclusions from all of this: 1) The partner is indeed fluent in English and his contradictory statements are just that, contradictory or; 2) The letter was not created by the partner and is the creation of Mr. Ward in the guise of a statement from his partner. [ 14 ] Other portions of the Pre-Sentence Report call into question Mr. Ward’s remorse. Mr. Ward’s sister informed the Probation Officer that Mr. Ward told her that he was “set up” with respect to this offence. He states he regrets what he did and realizes his actions have greatly impacted the victim’s family.

He also states he does not believe his sexual offence adversely impacted the victim himself. He states he ceased the sexual activity when he noticed that there was no pubic hair reflecting the very young age of the child involved. However, as pointed out by the Crown, this was clearly evident from the commencement of the event and does not explain why the event occurred at all. Mr. Ward volunteered that he has sexual relationships with men of all ages, particularly men who are younger than he.

However he indicated that he did not know the victim’s real age or that he had a developmental delay resulting in a younger intellectual age. However the victim’s mother stated the disability is noticeable in his immature actions and language skills. The Probation Officer’s assessment that Mr. Ward accepts responsibility for the offence itself but also engages in minimization and victim blaming is accurate. Resolution [ 15 ] The negatives with respect to Mr.

Ward are as follows: 1) A dated conviction for an almost identical offence; 2) Sexual involvement with a child that was not the result of an altered state of mind by reason of alcohol or drug consumption; 3) Strong evidence that post finding of guilt there has been a concerted effort by him to re-write history to his own advantage and to minimize his blameworthiness. [ 16 ] The atmosphere surrounding the commission of this offence is particularly noteworthy. The information supplied by the defence makes it clear that the child victim went to the residence of Mr.

Ward for the explicit purpose of being sexually engaged. When the

child was first seen on the bed, doing what he was doing, there was no concern expressed by anyone present, no action taken to immediately remedy the situation by anyone present. In fact there was a sense of normality. [ 17 ] When Mr. Ward got on the bed and further exposed the genital area of the child victim and commenced the acts giving rise to the conviction once again there was no sense of anything out of the ordinary. No sense of concern. No sense of outrage. The evidence supplied by the defence was everyone simply went downstairs and had dinner.

The context is clear. [ 18 ] On the other hand there was significant evidence presented with respect to the good character of Mr. Ward and his heavy involvement in community activities over a period of years. As early as 1979 he received a gold medallion award for services to the Italian community, related to the Brantford International Villages event. He was a participant with others in the creation of Nova Vita home for battered women.

He has been involved with and has provided service to a number of community organizations including Ministry of Correctional Services, the Canadian Institute for Conflict Resolution, the Roman Catholic Jail Ministry Volunteers, the Islamic Society of Niagara Peninsula and a number of other charitable and volunteer organizations in the broader community. Since 1996 he has been restricted as a result of his criminal code conviction from being more involved with youth. [ 19 ] Letters of recommendation from individuals in the community were filed with the court as well.

These also confirm his positive involvement with the disenfranchised and the needy in our community. [ 20 ] The victim impact statement from the victim and from his mother were filed with the court as Exhibits 2 and 4 respectively. Unfortunately those victim impact statements appear not to have been vetted by Crown counsel and defence counsel before presentation to the court.

Certain content in those victim impact statements, particularly from the victim himself, are not appropriate for a victim impact statement, but rather go to content related to the facts of the offence itself rather than the harm done or loss suffered by a direct or collateral victim arising from the commission of the offence. The non-appropriate portions of the victim impact statements are disregarded. [ 21 ] However the appropriate portions of the victim impact statements clearly describe a set of post event circumstances that have caused anxiety to the victim and his family.

In particular the victim’s mother describes the victim as a person who is physically of one age and mentally and emotionally of a much lesser age with the result that he cannot find friends and a comfort factor with children of his own biological age nor of children younger than he is. The result is that he is keen to gain acceptance but also naïve and open to exploitation. [ 22 ] The Crown seeks a custodial sentence of 9 to 12 months in custody.

The defence acknowledges the minimum sentence provisions in the Code and recommends a sentence in the 30 to 90 day range. [ 23 ] The circumstances of the offence demonstrate a specific act that was not the result of thinking or inclination effected by impaired judgment resulting from significant consumption of alcohol or drugs. The best evidence before the court is that Mr. Ward has a propensity for this conduct, which propensity was given into on the day in question resulting in the offence.

He attempts to tread a very fine line between demonstrations of remorse and asking the court to consider the conduct of a 13 year old child with a mind of an 8 year old as somehow ameliorating. His post offence conduct with respect to his input in written and oral information provided by his partner and his own information provided to the preparer of the Pre-Sentence Report is demonstrative of a manipulative and self-serving individual. [ 24 ] This is offset by the obvious commitment to disadvantaged in the community over a period of years. Mr.

Ward demonstrates the conflicting personality traits that make him a benefactor in the community and a sexual offender against this child with very limited remorse. [ 25 ] It is clear that a non-penitentiary term of imprisonment is appropriate for this offender with respect to this offence. The result is that while it was not subject of submission during the sentencing process a conditional sentence must be considered. Given the circumstances of this offence, particularly the attitude of Mr.

Ward towards the commission of this offence, and his prior record for a similar offence it cannot be said that the public safety could be adequately protected by any form of sentence served in the community. Clearly Mr. Ward has demonstrated propensities, which have not been fully analyzed and addressed which makes him a risk to re-offend. [ 26 ] For all of the reasons that have been canvassed it is necessary that Mr. Ward spend 9 months in custody followed by 2 years of

probation. This sentence adequately addresses personal deterrence, which is a significant factor in sentencing of Mr. Ward. It also addresses general deterrence for any other persons in the community who believe that a willing child participant is somehow not to be protected by the law and the court process. It provides denunciation that addresses the community’s need to see that offenders such as Mr. Ward are dealt with by the court system in a way that promotes protection of children from exploitation by adults for their own advantage. [ 27 ] Finally, totality of sentence, including probation, provides Mr.

Ward with an opportunity to have a meaningful program of rehabilitation put in place and concluded with the involvement of appropriate professionals. [ 28 ] Mr. Ward is sentenced to 2 months time served and 7 months to be served in custody followed by probation of 2 years with terms as follows:

a) Usual statutory terms including keeping the peace and being on good behaviour;

b) Reporting to a Probation Officer within 2 days after release from custody and otherwise as required;

c) To take

part in whatever programs of assessment, treatment and counselling are deemed necessary or advisable by the probation Officer including programs related to sexually inappropriate behaviour with children.

d) Not to be in the company of any person under the age of 16 years unless accompanied by an adult relative or guardian over the age of 21 years;

e) To allow the police to enter and inspect his own residence including any rental portions of such residence building to ensure there are no persons under the age of 16 present or living anywhere in the said units whether with an adult relative or otherwise.

f) Not to be within a 100 meter radius of any school, playground, park where youth under the age of 16 years of age are likely to assemble.

g) Not to have any contact direct or indirect and not to attend within 100 meters of the place of residence, education or occupation of the named victim and members of his immediate family;

h) Not to have any association direct or indirect with any person who has a conviction as a child sex offender under the Criminal Code of Canada . [ 29 ] In addition there will be an Order under Section 161 (1) of the Act in accordance with sub-paragraphs (a), (

b) and (

c) of that

section preventing attendances at public parks and other locations as described in sub-sub paragraph (a), be employed or volunteering with respect to sub-sub

section (

b) and using a computer in accordance with sub-sub

section (

c) for a period of 10 years from the date of release from imprisonment for this offence. [ 30 ] There will also be an Order until

Section 490.012 of the Code for compliance with the requirements of the Sex Offender Information Registration Act for a period of 10 years, and a DNA Order for a person in custody. Dated at Brantford, Ontario This 19 th day of October, 2011

The Honourable Mr. Justice L. P. Thibideau