2021 NBPC 16, 2021 NBPC 16

2021NBPC16 Provincial Court Province of New Brunswick Date: November 3, 2021 Docket: 15742713 Her Majesty, The Queen - and - William Thompson Decision of the Honourable Judge Cameron Gunn of the Provincial Court of New Brunswick Appearances: Jean Guy Savoie, for Her Majesty the Queen Bruce Phillips, for William Thompson A Publication Ban previously imposed in this matter has been lifted at the request of the Victim Note: This document is subject to editorial revision before its reproduction in final form INTRODUCTION 1 . William Thompson is the uncle of Cindy Leggatt.

As a result of abuse and neglect she suffered with her birth family and in foster care, he became her de facto father. After Cindy Leggat moved to the home of William Thompson, he eventually became her abuser. 2 . As a result of allegations Cindy Leggatt made against William Thompson for events that occurred over 40 years before, he was charged with three offences. Ultimately, after trial (and guilty pleas to two charges that were rejected by the Court) he was found guilty on charges that:

Count 1: on or between the 11 th day of March A.D. 1977 and the 11 th day of March A.D. 1980 at or near Napan, in the County of Northumberland and Province of New Brunswick, did indecently assault Cindy Leggatt , a female person, committing thereby an indictable offense, contrary to and in violation of

section 149 of the Criminal Code of Canada ; Count 3: on or between the 11th day of March A.D. 1977 and the 11th day of March A.D. 1980 at or near Napan, in the County of Northumberland and Province of New Brunswick, without lawful authority, did confine C. L., thereby committing an indictable offense, contrary to and in violation of subsection 247(2) of the Criminal Code of Canada ; 3 . A third charge, contrary to

section 157 was conditionally stayed. 4 . This decision is about what sentence should be imposed on Mr. Thompson. The Parties 5 . The parties do not agree on the appropriate sentence. The Crown recommends a sentence of between 2 to 3 years plus appropriate ancillary orders. Counsel for Mr. Thompson suggests a sentence of 2 years and takes no issue with the ancillary orders. The Law 6 .

Sentencing is governed by the provisions of the Criminal Code but I, as the sentencing judge, have a broad discretion that allows me to attempt to meet the objectives being pursued in sentencing. [1] The balancing I must undertake in this case is complicated by the fact that the imposition of sentence occurs over 4 decades after the commission of the offences. The first offence, indecent assault of a female person, contrary to

section 149 of the Criminal Code of Canada no longer exists having been repealed and replaced by the offence of sexual assault after January 4, 1983. [2] Social and sentencing norms have changed greatly in those four plus decades. 7 . The starting point to the imposition of a fit sentence is an understanding, and adoption of, the purposes and principle of sentence as described in the Criminal Code of Canada . ” [3]

Section 718 describes the fundamental purpose of sentencing as contributing to a just peaceful and safe society by imposing sanctions that aim to denounce unlawful conduct and the harm done to victims caused by that conduct, to deter the offender and other persons from committing offences, to separate offenders from society, where necessary, to assist in rehabilitating offenders, 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 or to the community. 8 .

As I said above, it is important that I remain mindful of these objectives and seek a balance. Certain of the objectives described above may need to “ be emphasized to convey society's condemnation”. [4] For instance when denunciation becomes predominant courts may “have very few options other than imprisonment for meeting these objectives, which are essential to the maintenance of a just, peaceful and law-abiding society.” [5] At the same time, rehabilitation of offenders can contribute to a just, peaceful and safe society.” [6] 9 .

In addition to the fundamental objective of sentencing, the Criminal Code also holds that the fundamental principle of sentence is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This is called the proportionality principle. 10 . Other principles are important in crafting an appropriate sentence here. First,

section 718.2(

b) of the Criminal Code states that "a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances." In the case before the court I am required to compare and contrast it with analogous cases, including the presence or absence of specific aggravating and mitigating circumstances. [7] 11 .

Section 718.2 (

a) of the Criminal Code indicates that a "sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender."

12 . Mr. Thompson abused a person under the age of eighteen years when he assaulted Cindy Leggatt. This is an aggravating circumstance pursuant to s. 718.2 . It is also aggravating, pursuant to s.718.2 (iii.1) that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation. 13 .

I am also mindful of s. 718.2 which dictates that an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances and all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders. The Offender 14 . William Thompson is 76 years old and reports having had a positive upbringing. He has been married for 52 years to his wife Ruth Thompson, who is 71, and has two children; a son, 51, and a daughter, 49, who both reside in Ontario.

He has seven grandchildren and two great-grandchildren. In the presentence report he advises that he took in his niece when she was 11 years old and raised her “as a daughter” treating her no different than their biological children. 15 . Despite the offences for which Mr. Thompson was accused, and later convicted, his marriage remains strong and his wife is supportive of him. He is concerned with what his wife will do if he is incarcerated. 16 . Mr. Thompson was heavily involved with his church and has spent significant time volunteering through that church.

He has been a sponsor of families in need, volunteered doing repairs for his church and has volunteered with the Salvation Army. The current court proceedings have, according to him, negatively impacted his relationship with the church and he no longer has trust in his pastor. It is worth note that that pastor testified in these proceedings. 17 . Mr. Thompson, from 1976, until his retirement in 2004 owned his own construction company. He is currently a recipient of old age pension, Canada pension and pension from his union. He reports that these benefits will cease if he is incarcerated. 18 .

While he feels significant stress from the current matters before the court, he does not suffer any emotional or mental health issues. He did undergo open-heart surgery in 2011 and has high blood pressure and the potential for blindness due to having glaucoma in both eyes. 19 . He has no issues with addictions and in fact recounts having only one beer in his entire life. Mr. Thompson has no criminal record. 20 . Counsel for Mr. Thompson entered three letters from people who attest to his good character.

Collectively they speak of the accused as someone for whom this offence is out of character, who is family oriented, and who was a good worker. The Victim 21 . The victim has been, as might be expected, tremendously impacted by the events that form the offences. Her victim impact statement is poignant. In it she describes the effect that the actions of William Thompson have had on her life. As an example, at page 4 of the victim impact statement, she writes: The last several years have been very hard on my mind, body and soul. Carrying the weight of this devastating secret by myself was tearing me apart.

I thought that I needed to protect the rest of my family, but as the weight became too heavy for me, the secret turned me into someone that I didn’t recognize. The suppressed memories, once surfaced, has spiraled my life into depression, withdrawn with suicidal thoughts and attempts, marital problems and gambling to try to escape the truth. My day-to-day activities were suffering (and still is) my mind would not stay focused on my work and I knew I was losing my own identity.

I turned to gambling as a way to escape my problems and relieve the feeling of helplessness, guilt for not telling my family, and anxiety and depression. I am not making excuses for myself, but this person was not a true reflection of me, it was a person reaching out for help through other outlets. The gambling only began after the suppressed memories surfaced. Never in my adult life that I asked for, nor did I ever receive any money from my family, not until my life began to spiral out of control. I knew that I was falling apart.

Eventually at my lowest point, I decided that I could not put myself through this anymore, too many people were hurting. I needed help, but in order to save my own life I knew that I might have

to destroy someone else’s. Aggravating Circumstances 22 . I have mentioned aggravating circumstances but for specificity I consider the following to be aggravating circumstances: a . the age and vulnerability of the victim at the time; b . the nature of the offence and that it involved a breach of trust; c . the ongoing emotional, psychological and physical impact the victim has suffered and continues to suffer. Mitigating Circumstances 23 . There are several mitigating circumstances. I consider it mitigating that Mr. Thompson: a . Has expressed remorse; b . Has the support of his family and friends; c .

That the letters of support show a person of generally good character; and d . A generally positive pre-sentence report. 24. It is important to acknowledge William Thompson offered guilty pleas to counts 1 and 2 but maintained his not guilty plea on count 3. As I noted in my trial decision, there was a dispute about the factual foundation of those pleas and ultimately I found that the version of the events testified to by the accused did not satisfy all of the elements of the offences for the above two charges and I struck his guilty pleas. 25. A guilty plea may be a powerful mitigating circumstance.

As the Supreme Court of Canada noted in R. v. Friesen , [8] however, the value of a guilty plea is dependant on the circumstances in which it was made. [9] For instance, in Friesen the Court held that the guilty plea had less weight because the case against him was overwhelming. Here the guilty pleas were made at the beginning of trial and based upon factual admissions that bore no relationship to the offences alleged by the victim and which I held could not have supported a conviction. As such, those pleas have limited value. [10] The Offences 26.

The offences for which the accused was charged are serious, though their maximum punishments reflect, it appears, an antiquated notion of moral blameworthiness. The offences under ss. 149 and 247(2) carry a maximum penalty of 5 years imprisonment. 27. Judicial attitudes towards the crime have evolved. The decision of our Court of Appeal in R. v. R.P . [11] is exemplary. Based upon the Court’s recognition of the changes to the Criminal Code , including new offences and mandatory minimum sentences, they offered new guidelines for sentencing judges in cases of sexual assault against children. 28.

Counsel for the Crown emphasized this change by reference to two decisions. The first is R v Friesen , where the Supreme Court of Canada offered guidance to sentencing courts when they have offenders before them who have sexually abused children. The other is R. v. W.D. [12] which establishes a benchmark, they suggest, for offences committed against children in similar circumstances to the one before the Court. I will return to these cases later in this decision. 29. Counsel for Mr. Thompson acknowledges the impact of the two decisions as precedent.

He suggests that the sentence here be a reflection of the one imposed in Friesen . He suggests that the sentence in that case reflected 40% of the potential maximum sentence and the sentence here then should be 2 years, which would be 40% of the maximum available sentence. 30. Friesen clearly is instructive to me as a judge imposing sentence. The Court delivered the overarching message that sentences for sexual assaults and other sexual crimes against children must increase. At paragraph 1 of the decision the Court wrote: Children are the future of our country and our communities.

They are also some of the most vulnerable members of our society. They deserve to enjoy a childhood free of sexual violence. Offenders who commit sexual violence against children deny thousands of Canadian children such a childhood every year. This case is about how to impose sentences that fully reflect and give effect to the profound wrongfulness and harmfulness of sexual offences against children. [13]

31. At paragraph 5 the Court explicitly calls for an increase in sentencing: Third, we send a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerabilityand cause profound harm to children, families, and communities. Sentences for these crimes must increase.

Courts must imposesentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, asinformed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexualviolence against children. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching andongoing harm that it causes to children, families, and society at large. 32. The Court indicated that certain factors are relevant considerations in determining a fit sentence. They are: i.

Likelihood to Reoffend ii. Abuse of a Position of Trust or Authority iii. Duration and Frequency iv. Age of the Victim v. The Degree of Physical Interference vi. Victim Participation 33. In this case, the balance sought to be achieved in imposing a sentencing that meets the fundamental purposes and principle ofsentence is informed by reference to these factors. Likelihood to Reoffend 34. Mr. Phillips suggests, and the Crown acknowledges, that the likelihood to reoffend is low here.

Beyond these offences Mr.Thompson has no criminal record and following these offences his counsel has suggested he has lived a life devoted to his family, hiscommunity, and his church. Abuse of a Position of Trust or Authority 35. The Supreme Court of Canada has noted that not all trust situations are the same. They wrote: The abuse of a position of trust is also aggravating because it increases the offender’s degree of responsibility. An offender who stands ina position of trust in relation to a child owes a duty to protect and care for the child that is not owed by a stranger.

The breach of the dutyof protection and care thus enhances moral blameworthiness (R. v. S. (W.B.) (1992), (AB CA), 73 C.C.C. (3d) 530(Alta. C.A.), at p. 537). The abuse of a position of trust also exploits children’s particular vulnerability to trusted adults, which isespecially morally blameworthy (D. (D.), at paras. 24 and 35; Rayo, at paras. 121-22).[14] 36. The abuse of trust here is profound. The Thompson’s brought into their home a child who had been abused; her sibling had died as aresult of the same abuse.

They could not fix what had happened in her past, but they had the chance to apply some salve to the wounds ofa broken childhood; instead William Thompson laid those wounds bare. Duration and Frequency 37. As the Court in Friesen noted, “each further instance of sexual violence traumatizes the child victim anew and increases thelikelihood that the risks of long-term harm will materialize. Each further instance shows a continued and renewed choice by the offenderto continue to violently victimize children.”[15] The Crown posits that the number of occurrences in this case was less than in R v.

W.D.That may be so, but the offences here were multiple over an extended period of time. Age of the Victim

38. The offences in this case occurred when the victim was 11 and continued until she was 13. Degree of Physical Interference 39. The message in Friesen with respect to this consideration is, that while the degree of physical interference is a relevant factor in crafting a sentence, there are dangers in defining a sentencing range based the specific type of sexual activity at issue.

Any sexual violence is still "extremely serious" and can have a devastating effect on the victim. [16] There is no hierarchy of physical acts and digital penetration can be just as serious a violation of the victim's bodily integrity as penile penetration. [17] The facts, as I have found them, are contained in my trial decision through my acceptance of the testimony of Cindy Leggatt. The acts constituted a significant violation of the victim's bodily integrity. Victim Participation 40.

On the facts as I have found them there is no suggestion of victim participation and even if there had been, it is irrelevant to the determination of a fit sentence. Range of Sentence 41. The principle of parity requires that similar sentences be imposed on similar offenders for offences committed in similar circumstances. As the Supreme Court of Canada has noted in Friesen “ sentencing ranges and starting points are guidelines, not hard and fast rules” [18] . That said, the parity principle is informed by prior decisions. In this case the parties have provided only one case, R. v.

W.D. though the Crown offered it knowing its limited value given the difference in the nature of the offences. It does offer some sense of the range of sentence available. Consecutive v. Concurrent 42. I am mindful here of the obligation to consider the applicability of the provisions governing consecutive and concurrent sentences. In my view the individual offences are part of the same transactions and there is a reasonably close nexus that is sufficient to overcome the presumption of consecutive sentences. As such, I have chosen to impose concurrent sentences.

Indeed, the parties both proposed this during their submissions. Conclusion and Appropriate Sentence 43. The Supreme Court of Canada has noted that Parliament has “shifted the focus of sexual offences against children from chastity or propriety to a "child-centred" approach that emphasizes the trauma to the child victim from all acts of sexual violence”. [19] The actions of the offender here happened before this shift and thus the maximum penalties for these crimes are 5 years. 44. The actions of William Thompson immeasurably altered the life of Cindy Leggatt.

Nothing that occurs here today can change the awful devastation of his conduct. He stands before the Court as a man for whom a substantial jail sentence will have significant consequences given his age, but his offences call for a sentence that denounces his conduct. 45. I have referred repeatedly to the Supreme Court’s decision in Friesen and I do so one last time.

The Court indicated that in emphasizing the harmfulness of sexual offences against children they were not stereotyping “child victims of sexual violence as forever broken.” They wrote and I agree that “it takes great "strength and courage" to survive sexual violence” and “Offenders cannot rob children of their "strength, compassion, love for others and intelligence" and "resolve to take back their lives". [20] 46. The sentence of the Court is as follows: a . For the offence contrary to s. 149 of the Criminal Code of Canada , I sentence the accused to 3 years in jail. b .

For the offence contrary to s. 247(2) , I sentence the accused to 3 years in jail concurrent to any other sentence I impose. 47. In addition, ancillary orders are required: a. Pursuant to

section 109 of the Criminal Code I make an order that Mr. Thompson be prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for a period of 10 years;

b. Sections 149 of the Criminal Code is primary designated offence under

Section 487.04 (

b) of the Criminal Code and thus pursuant to s. 487.051 I order that such samples of bodily substances that is reasonably required for forensic DNA analysis be taken from Mr. Thompson; c.

Section 149 as it was in force at the time is a designated offence pursuant to s. 490.011(1)(c). As such, an order pursuant to s. 490.012 of the Criminal Code that the accused comply with the Sex Offender Information Registration Act for the applicable period specified in

section 490.013 which in this case is 10 years; d. Pursuant to

section 743.21(1) of the Criminal Code I order that William Thompson be prohibited from communicating, directly or indirectly, with Cindy Leggatt during the custodial period of his sentence. 48. I am not imposing a victim fine surcharge as the

section authorizing the same was not in force at the time of the offences and Mr. Thompson will be incarcerated for a long period of time and has no significant source of income. 49 . I am filing a full written judgment and entering it into the record of proceedings, providing a copy to the parties and noting that an oral

summary of this judgment has been read into the record. [21] ________________________ Cameron Gunn, PCJ.