R. v. J.M.S. Date:, 2016 BCPC 253

Citation: R. v. J.M.S. Date: 20160429 2016 BCPC 0253 File No: 204026-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. J.M.S. BAN ON PUBLICATION - s. 486.4(2) C.C.C. ORAL REASONS FOR SENTENCE OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE R.N. HAMILTON Counsel for the Crown: W. Sayson, Q.C., C. Stewart

Counsel for the Defendant: K. Johnston Place of Hearing: Surrey , B.C. Dates of Hearing: November 23, 24, 25, 30, December 1, 3, 2015; April 13, 2016 Date of Judgment: April 29, 2016 INTRODUCTION [ 1 ] THE COURT : J.M.S. comes before me today for sentencing, following my conviction of Mr. S. on 11 counts of sexual offences against four of his grandchildren. [ 2 ] I convicted Mr. S. on December 16th, 2015 and I heard sentencing submissions on April 13, 2016. Both a Pre-Sentence Report and a Psychological Assessment were prepared in advance of the sentencing submissions. [ 3 ] Mr.

S. is going to serve his sentence in a federal penitentiary. The Crown seeks a global sentence in the range of four-and-a- half years, while Mr. S. argues that a fit sentence is in the range of two-and-a-half to three years. Both the Crown and counsel for Mr. S. have filed sentencing cases that support their respective positions on sentence.

BACKGROUND [ 4 ] I begin my analysis by asking the rhetorical question, "Why do adults victimize innocent young children?" In the circumstances of this case, "Why does a grandfather, loved by his many grandchildren, subject some of those grandchildren to his intrusive sexual acts?" [ 5 ] These are, in many respects, unanswerable questions, but given the abhorrence society has for the sexual violation of innocent children by adults in a place of trust, Parliament and our courts across Canada have determined very clearly that the denunciation and deterrence of these crimes are the primary sentencing principles that I must apply in arriving at a fit sentence for Mr.

S. [ 6 ] I do not propose to review at any length my factual findings in my earlier decision when I found Mr. S. guilty of these offences, but briefly. [ 7 ] Mr. S.'s offences span a 17-year period between 1992 and 2009. Four of his grandchildren were his victims. Three were his granddaughters and one was his step-grandson. The granddaughters are M.P., R.F. and M.R. The grandson was S.S.

Tragically, after the trial and while awaiting the sentencing hearing, S.S. was killed in a motor-vehicle accident. [ 8 ] While the recent unimaginable pain visited upon this already victimized family is not relevant to my decision today, these proceedings have had a heightened level of grief and emotional distress. [ 9 ] Returning to my brief narrative of Mr. S.'s crimes; firstly, M.P. The offences against M.P. began when she was five years old and ended when she left to live with her father at the age of ten. I found that Mr.

S. would climb naked into bed with M.P., touch her vagina and use her hand to masturbate him to ejaculation. In addition, M.P. testified that her grandfather would kiss her by inserting his tongue into her mouth. The offences occurred when M.P. was living with her grandparents, due to the unstable life her mother was living at the time. [ 10 ] The offences against R.F. occurred when she was between six years old and 13 years old. On four occasions, Mr. S. got into bed with R.F. and, as with M.P., he used her hand to masturbate himself to ejaculation. Two of the offences occurred at Mr.

S.'s home during a sleepover for R.F., and two of the offences occurred during the many camping trips Mr. S. took with his grandchildren. In addition to using R.F.'s hand to masturbate himself, I found that Mr. S. would intrusively kiss R.F. on her lips by trying to insert his tongue into her mouth. [ 11 ] Mr. S.'s offences against M.R. were limited to his intrusive French kissing. Those offences occurred when M.R. was ten to 12 years old. [ 12 ] Mr. S.'s offences against S.S. occurred during the course of one evening following the celebration of S.S.'s eighteenth birthday. S.S. had asked for some money from Mr.

S. so that S.S. could pay for his cellular phone plan. Mr. S. agreed to give S.S. some money in exchange for S.S. performing some chores around the house. S.S. spent the night at his grandfather's home, and during the course of that evening, Mr. S. purchased for S.S. some cinnamon-flavoured whisky, some of which S.S. consumed and became intoxicated. S.S. testified, and I accepted, that while at Mr. S.'s home, Mr. S. attempted to grope S.S.'s groin and grabbed S.S.'s hand, trying to force S.S. to touch Mr. S.'s groin while the two were in Mr. S.'s bedroom. In addition, Mr.

S. played a homosexual pornographic movie for S.S. and asked S.S. to perform

an act of oral sex on Mr. S. [ 13 ] That, in a very

summary manner, are the facts of the offences for which I found Mr. S. guilty on December 16th, 2015. AGGRAVATING AND MITIGATING CIRCUMSTANCES [ 14 ] Turning first to the factors to be taken into account in mitigation of Mr. S.'s sentence, there are three, although there is an additional factor which is not a mitigating factor, but which I cannot ignore in determining a fit sentence for Mr. S. [ 15 ] The three mitigating factors are, firstly, Mr. S. has no criminal record; secondly, he has been assessed as a low-to-moderate risk to reoffend, and thirdly, Mr. S. has the support of some of his family.

[ 16 ] With respect to Mr. S.'s lack of any criminal record, there is not much more I can say. He has not come before these courts and been convicted of a criminal offence until the Crown pursued these charges against him. Mr. S. has, by all accounts, been a law-abiding citizen throughout his life. [ 17 ] I should be careful, however, in overemphasizing Mr. S.'s lack of a criminal record. The fact is that Mr.

S.'s sexual offences spanned 17 years and date back to 1992, so while it is true that he comes before the court with no criminal record, he has been offending against his grandchildren starting in 1992 and ending in 2009. [ 18 ] Second, Mr. S. is at a low-to-moderate risk to reoffend. In his psychological report prepared for this sentencing hearing, Dr. Stangeland concluded that Mr. S. is a low-to-moderate risk to reoffend; however, Dr. Stangeland also noted that Mr. S. conducted himself during the testing and clinical interviews in a self-contained and secretive manner. Dr.

Stangeland also noted that there are a number of areas with respect to Mr. S.'s circumstances and offending where there is a lack of adequate information. Dr. Stangeland made those comments because throughout his assessment of Mr. S., Mr. S. maintained his denial that he ever committed any sexual crimes against his grandchildren. [ 19 ] With no acknowledgment of the offences as found by me in my reasons for conviction, it is difficult to accurately determine the risk Mr. S. poses to sexually offend in the future. However, there are two undeniable facts which I find limit the risk that Mr.

S. will sexually offend in the future. First, he is impotent as a result of a workplace injury he received a number of years ago, and second, all or most of his grandchildren are now adults, and with his conviction, I believe his extended family will be vigilant to ensure Mr. S. has no opportunity to victimize any more innocent children in his family. [ 20 ] Third, Mr. S. has the heartfelt support of some of his family. During submissions before me on April 13th, 2016, Mr. S.'s adult son, J. Jr., asked to address me. As would be expected, his comments came with significant emotion. Mr.

S.'s convictions are impossible for this family to comprehend. As I noted in my reasons for conviction, when S.S. disclosed what happened to him at the hands of his step-grandfather, he was not believed by some of his family. Indeed, his disclosure caused a rift in his family such that some of the family members did not speak to other family members for years. [ 21 ] J.S. Jr., stands behind and supports his father, as would be expected of any son whose immediate family has not been victimized. I did not interpret J.S.

Jr.'s comments to me as dismissive or failing to accept my judgment that his dad had seriously hurt his grandchildren. Rather, J. Jr.'s comments come from a place where what I have found has happened cannot be reconciled with his lifelong experiences with his father. I understand that. [ 22 ] If someone like Mr. S. Sr. is going to remain a law-abiding citizen once he is released from prison, he will need the support and vigilance of people like his son, J. Jr. Mr.

S. is blessed and should be grateful that he still has that hallowed relationship with his son who, in the midst of a family fractured and reeling in pain, stood up in his father's corner to ask for mercy. That kind of family support, in my view, is a significant mitigating factor. [ 23 ] The last factor, which is not a mitigating factor per se, but is nonetheless something that I will take into consideration, is Mr. S.'s health. Mr. S. is 68 years old and he is not in good health.

He suffers from a number of adverse health conditions, including sleep apnoea, a heart condition and severely limited mobility. [ 24 ] In some of the cases I reviewed in preparation of these reasons for sentence, many of the judges took into account the fragile health of the accused they were sentencing. The health of the accused is not properly considered a mitigating circumstance, because it has no bearing on the moral blameworthiness of the accused. However, given Mr. S.'s health, his counsel, quite rightly, argued that Mr. S.'s time spent in custody will be more difficult for Mr.

S. than for a healthy prisoner. Weighed against this concern for Mr. S.'s health is the lifelong effect his crimes against his granddaughters will have on those women. Having said that, it remains an undeniable fact; Mr. S.'s health will make his time spent in prison more difficult than if he was fit and healthy. [ 25 ] Turning to the aggravating circumstances, Mr. S.'s sexual crimes carry with them a number of aggravating circumstances. 1. The age of his victims. Mr. S. offended against M.P. and R.F. when they were five and six years old. His offences against M.R. started when she was ten.

Sexual crimes against innocent young children are abhorrent. Many cases make that point. The victimization is difficult to comprehend. It is easy enough to say these things, but it is something very different to watch the pain, the emotional agony, of young ladies talking about the robbery of their innocence. To subject young children to the sexual deviance of an adult is a crime that must be condemned in very clear and strong terms. Mr. S., you hurt your grandchildren. You hurt them badly. You hurt them in a way that they may never recover from. You stole the innocence of those little girls.

They had to devise strategies to protect themselves from you, begging for a cousin to come for a sleepover, putting L. (1) in the middle of the bed, and while the intrusiveness of your sexual crimes did not go so far as sexual intercourse or oral sex, M.P.'s testimony of telling you she hated you, and your promises to stop, promises that meant nothing, give us only a glimpse into the destructive nature of your crimes. The ages of your granddaughters when you chose to offend against them is a significant aggravating factor. 2. The length and duration of the offending. The length and duration of Mr.

S.'s offending and the fact that he offended against four of his grandchildren is another aggravating factor. This spanned a period of 17 years. This was not a crime of opportunity during an isolated period in Mr. S.'s life. It occurred both when Mr. S.'s wife, L. (2) , was alive, and after her passing. It occurred with both female and a male grandchild.

The significance of this aggravating factor calls out for a strong message to like-minded offenders that if you choose to rob your grandchildren of their innocence in order to satisfy your sexual needs, you will receive a significant jail sentence in a federal penitentiary. 3. Mr. S. was in a position of trust and authority. I have already commented on the violation of these victims at the hands of Mr. S. His grandchildren were entitled to expect that their grandfather would protect them from evil, rather than expose them to sexually deviant behaviour.

He breached their trust in him in a manner that deserves an equally strong message that what he did was wrong. 4. Ms. Stewart for the Crown argues that the effect of these crimes on the victims is a further aggravating factor. While I do not disagree that the effect of a crime on a victim can be considered an aggravating factor, I must be careful with this factor, because the

effect of a crime on a victim is a very subjective response. However, it was clear to me during the testimony of all four of Mr. S.'sgrandchildren that they have been devastated by these sexually-intrusive crimes committed against them. I do not know if there hasbeen, or will be, permanent adverse consequences to the lives of M.P., R.F. and M.R. Their testimony before me was a clear indicationthat they have not yet been able to put their victimization behind them. 5. Deceit. While not a dominant feature of his crimes, Mr. S. employed some deceit to hide his sexual abuse of M.P.

At times,when M.P. was sleeping at her grandparents' home, she would awake, screaming and visibly upset. M.P.'s grandmother, L.(2), wouldwonder what was upsetting her granddaughter, to which Mr. S. would say that she was probably upset over his bedtime lullaby, when hewould change the lyrics of "Mary had a little lamb," to "Mary killed a little lamb." Apparently this alleged bizarre practice of singingviolent lullabies to coax a child to sleep was accepted by other adults in Mr. S.'s home as adequately explaining why young M.P. waswaking up at night with nightmares. I am of the view that Mr.

S. relied on this rather flimsy story in a successful effort to keep secret hissexual offending against M.P. 6. No remorse. Mr. S. testified at trial and denied any sexual offending against the four victims in this case. In the Pre-SentenceReport and the Psychological Assessment prepared for the sentencing hearing, Mr. S. maintains that he is innocent, and that theallegations against him are completely false. While not truly an aggravating factor, Mr. S.'s refusal to acknowledge this court's findingsat trial is a factor that I must take into consideration when arriving at a fit sentence. [26] I note that Mr.

S.'s rehabilitation is not a dominant sentencing principle for me to consider in determining a fit sentence for hiscrimes. However, his rather dim prospects for rehabilitation are not enhanced at all by his persistent denial of these crimes. Any sexoffender counselling that will be available to Mr. S. while in prison will have a limited effect on his appreciation of his offendingbehaviour so long as he remains firm that he has done nothing wrong. SENTENCING PRINCIPLES [27] As I have said, the predominant sentencing principles that I must consider in this case are denunciation and general deterrence.

As a society, we denounce these crimes because they are abhorrent. Children are victimized and their innocence robbed of them at thebeck and call of a deviant adult sexual offender. Where that adult holds a position of trust over the child, society's call for justice islouder and more pressing. People who take under their care the innocent lives of young children need to be severely punished when, inbreach of that trust, the adult uses the child to meet their deviant personal sexual needs. [28] Mr. S. is no exception. In imposing my sentence upon Mr.

S., I cannot understate society's unequivocal condemnation of whathe did to each of M.P., R.F., M.R. and S.S. For that harm, Mr. S. needs to be punished severely. That punishment, in legal principles, iscalled retribution. [29] The other predominant sentencing principle that I must consider when imposing sentence upon Mr. S. is general deterrence. Imust impose a sentence that sends a message to like-minded offenders that if you sexually violate the trust of a child, you will go toprison for a very long time.

In other words, the clear message that must be sent is that the risk to your liberty of getting caught outweighsthe momentary pleasure of the offending sexual act. Indeed, there can be no question as to the cost benefit analysis for like-mindedoffenders. [30] With respect to the other sentencing principles set out in s. 718 of the Criminal Code and the sections that follow immediatelythereafter, it is clear that the rehabilitation of Mr. S. is unlikely. He does not accept my findings from December the 16th, 2015, and hedenies any criminal wrongdoing. [31] With the sentence I am going to impose, Mr.

S. will have the opportunity to access counselling and therapy. I suspect thatduring those sessions, Mr. S. will be confronted by fellow inmates to acknowledge what he has done as a first step in his rehabilitation. If Mr. S. chooses to resist those efforts to rehabilitate him, his family will lose an opportunity to have the patriarch of this large familyplay any meaningful role any further in the lives of those family members. Rather, Mr.

S., you will go to your grave as the sexuallydeviant grandfather who preyed upon his young grandchildren for nearly two decades. [32] With respect to specific deterrence, in other words, deterring Mr. S. from committing any further criminal offences, I do notview deterring Mr. S. from committing further criminal offences as a primary sentencing principle to consider in arriving at a fitsentence. But for these sexual crimes, Mr. S. comes before the court with no record of committing criminal offences. Mr. S.'s sexualcrimes were not committed against strangers.

His victims are adults, and I expect that all of his family will be vigilant around Mr. S.when it comes to his contact with young children. [33] Mr. S.'s poor health is another factor to consider in terms of specific deterrence. I am of the view that given his health, hisfamily's awareness of his crimes and his otherwise law-abiding life, I find it is unlikely that Mr. S. will commit further crimes in thefuture. CASE LAW [34] In considering the sentence to impose upon Mr. S., I was provided with, and reviewed, a number of cases. As Mr. S.'s lawyer,Mr. Johnston, and Ms.

Stewart for the Crown rightly noted, it is very difficult to find other cases that have very similar facts whendetermining a fit sentence. Nonetheless, I am required to impose a sentence that is on par with sentences imposed for similar crimescommitted by similar offenders in similar circumstances. While it is easy to articulate my task, it is not an easy task to undertake. WhileI read all of the cases presented to me, I will not review them all in this decision. THE CROWN'S AUTHORITIES [35] In R. v. Swope, 2015 BCCA 167 , 2015 B.C.C.A. 167, the B.C.

Court of Appeal upheld a global sentence of 39 monthsimposed following Mr. Swope's conviction on six counts of indecent assault. At the time of sentencing, Mr. Swope was 78 years old andin poor health. Mr. Swope was a former elementary school teacher, and in 1980 to 1981, he taught children in Grade 2. Mr. Swope

offended against six of his female students by touching the girls under their dresses and over top of their underwear, as well as touching agirl's vagina underneath her underwear. Mr. Swope offended against his students multiple times. The Court of Appeal upheld thesentence imposed by the sentencing judge, who imposed a series of consecutive sentences and then reduced the sentence by half aftertaking account of the totality principle.

The court in Swope confirmed that the primary sentencing principles in cases of sexual offencesagainst children by adults in a position of trust or authority are denunciation and general deterrence. [36] In R. v. D.D., (ON CA), [2002] O.J. No. 1061, Mr. Justice Moldaver from the Court of Appeal, as he wasthen, wrote a thorough and well-articulated decision upholding a sentence of nine years in prison for a man in his early to mid-30s whobefriended four young boys between five and eight years old, and then engaged the children in sexual acts, including masturbation, oralsex and attempted and completed anal sex.

Mr. D. appealed the sentence, arguing that an earlier Ontario Court of Appeal decision in R.v. Stuckless (1998), (ON CA), 127 C.C.C. (3d) 225 set the high watermark in sentencing decisions when the Court ofAppeal determined in the case of Mr. Stuckless that a fit sentence was six years in prison, in a case of prolonged sexual abuse of innocentchildren. I note that the sexual acts engaged in by Mr. D. were considerably more intrusive than those acts that I have found Mr. S. tohave committed against his grandchildren; however, in rejecting Mr. D.'s argument on the appeal, Mr.

Justice Moldaver states that forcrimes as heinous as those committed by Mr. D., a nine-year jail sentence was at the low end of the applicable range of sentence. Insummarizing the principles in sentencing ranges at play in these kinds of cases, Mr. Justice Moldaver said this, at paragraph 34: The overall message, however, is meant to be clear. Adult sexual predators who would put the lives of innocent children at risk to satisfytheir deviant sexual needs must know that they will pay a heavy price. Paragraph 35: Our children are at once our most valued and our most vulnerable assets.

Throughout their formative years, they are manifestlyincapable of defending themselves against predators like the appellant, and as such, they make easy prey. People like the appellant knowthis only too well, and they exploit it to achieve their selfish ends, heedless of the dire consequences that can, and often do, follow. Paragraph 44: To summarize, I am of the view that as a general rule, when adult offenders in a position of trust sexually abuse innocent young childrenon a regular and persistent basis over substantial periods of time, they can expect to receive mid-to-upper single-digit penitentiary terms.

When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physicalviolence or other forms of extortion, upper single-digit to low double-digit penitentiary terms will generally be appropriate. [37] Based upon those comments of Justice Moldaver, my view is that the range of sentence in Mr. S.'s case is a mid-single-digitpenitentiary term. [38] The last decision relied upon by the Crown is the B.C. Court of Appeal decision in R. v.

D.R.W., 2012 BCCA 454 ,[2012] BCJ No. 2646, in which the Court of Appeal upheld a four-year jail sentence imposed against a stepfather for sexual crimescommitted against his teenaged stepdaughter. The accused, Mr. W., admitted to fondling, masturbation and oral sex, but he disputed theallegation of sexual intercourse. Much of the Court of Appeal's decision concerns how a sentencing judge is to deal with factual disputesin a sentencing hearing. That legal analysis has no bearing in the case before me.

However, at paragraph 41 of the decision, MadamJustice Saunders says this: I recognize that in the case before us for sentencing, the offences started when the stepdaughter was in her teen years, and so lacks therepellent aspect of abuse of a small child. Further, given the conclusion on the credibility issue, the offence must be taken as not to haveincluded penetration or sexual intercourse. Nonetheless, in my view, the behaviour in the instant case is egregious. The rather clinicaldescriptions of the behaviour, which is admitted, to some degree mask the forbidden nature of Mr.

W.'s actions and his admittedknowledge from the beginning that his behaviour was wrong. I would go so far as to say the fact, or not, of penetration is not really themeasure of the offence, and what is in issue in a case involving a breach of the trust at the heart of a parent/child relationship is the extentto which that relationship was violated, the duration of that violation and the offender's appreciation of that violation as the behaviourcontinued. [39] In applying those factors just enunciated by Justice Saunders to the case of Mr.

S., I find that the relationship, while not aparent/child relationship, was on much the same footing as a parent/child relationship, certainly with respect to M.P., whose mothersought refuge at Mr. S.'s home during many instances of instability in M.P.'s childhood. The extent to which the relationship wasviolated was greater with respect to M.P. and R.F., particularly with respect to M.P., to whom Mr.

S. promised he would not harm heragain, but then went ahead and did so. [40] The duration of the violation is lengthy, if I look at the 17 years over which these offences were committed against M.P., R.F.,M.R. and S.S. The sexual crimes against M.P. covered a span of some years, and lesser periods of time with respect to the othergrandchildren, including the single night with respect to S.S. [41] Turning to Mr. S.'s appreciation of the relationship violation as his offending behaviour continued, there is none. As I havealready said, he made vacuous promises to M.P. He offended in a similar fashion against R.F.

He insisted on intrusive kissing thatviolated his granddaughters' personal sexual integrity, and his conduct with respect to S.S., buying him alcohol, watching homosexualpornography with him in his bedroom, and then attempting to engage S.S. in sexual fondling is a significant violation of the more distant

and tenuous relationship Mr. S. had with his step-grandson. [ 42 ] My view is that the Court of Appeal's decision in R. v. D.R.W. supports the conclusion that the range of sentence applicable in Mr. S.'s case is in the range of a mid-single-digit penitentiary term. THE DEFENCE AUTHORITIES [ 43 ] Of the cases relied upon by counsel for Mr. S., I find the following three cases to be instructive. In R. v. T.R.J. , 2015 BCSC 352 , Mr.

Justice Fitch imposed a provincial jail sentence of two years less one day, followed by three years’ probation, against a 67-year- old status Indian grandfather who sexually abused his four-to-five-year-old granddaughter by making her perform oral sex on him to ejaculation. At the time, Mr. J. was one of three primary caregivers for his granddaughter. In Mr. J.'s case, the sentencing decision of Mr. Justice Fitch followed a second trial on the sexual interference charges. Mr. J. had been on restrictive bail conditions for seven years, and Mr.

J. had experienced first-hand the difficulties associated with the abusive Indian residential school program operated by churches and the Federal Government in Canada. [ 44 ] Of significance in understanding Justice Fitch's sentence are his comments at paragraphs 59 and 61 of his decision, where he says that he is bound by a legal principle on a retrial in a criminal case not to impose a sentence more onerous than that which was imposed originally.

Justice Fitch goes on to say that but for that principle, he would have been inclined to impose a penitentiary term of imprisonment on the lower end of the range sought by the Crown of three to six years in jail. [ 45 ] In R. v. A.H. , 2013 ONSC 6846 , Justice Wilson, of the Ontario Superior Court of Justice, imposed a two-and-a-half-year sentence against Mr. H., who was 70 years old at the time. Justice Wilson convicted Mr. H. of the sexual interference of his two youngest granddaughters, who were 12 and 13 years old at the time of his offences. Mr.

H.'s offences included intrusive kissing, touching the girls' breasts and buttocks, holding the girls' hands against his penis over his clothes, and touching the girls' vaginas, including digital penetration of one of the girls. In the course of the decision, Justice Wilson says that the Ontario Court of Appeal has confirmed that the usual appropriate sentence range is three to four years’ incarceration in cases of prolonged sexual abuse of children involving a breach of trust by a family member, but not involving full sexual intercourse or collateral threats of violence.

Justice Wilson's conclusion in that regard appears to be somewhat at odds with Justice Moldaver's comments I have earlier referred to in R. v. D.D. [ 46 ] The final defence case I will reference is Judge Baird Ellan's decision in R. v. N.V. , 2010 BCPC 404 from our Provincial Court. In that case, Judge Baird Ellan imposed a two-year jail sentence followed by three years’ probation against an 86-year-old grandfather who sexually abused two of his granddaughters over a six-year period during their elementary school years. Mr.

V. would have one of his granddaughters come to his house during the lunch break, have his granddaughter take off her clothes, and he would touch her undeveloped breasts and genitals, use a vibrator on her, and get the girls to touch and kiss his penis. Mr. V. had entered guilty pleas. The granddaughters estimate they had been offended against by their grandfather on three hundred occasions. [ 47 ] Before Judge Baird Ellan the Crown sought a three-year jail sentence, and the defence sought a lengthy conditional sentence order, given Mr. V.'s age and poor health.

In imposing the two-year jail sentence followed by three years of probation, Judge Baird Ellan reviewed an extensive number of authorities. DETERMINATION OF A FIT SENTENCE FOR MR. S. [ 48 ] In considering a fit sentence for Mr. S., I note the following: 1. He offended against family members over whom he was in a position of trust and authority. 2. He started his abuse of M.P. and R.F. when they were only five and six years old. In the case of M.P. and R.F., they had to deploy their own means to protect themselves, getting L. (1) to sleep beside Mr.

S., or arranging the other child to come for a sleepover so they were not alone with their grandfather. M.P. in particular, but R.F. and M.R. as well, felt that they could not tell their parents what was happening with their grandfather out of fear as to what would happen to the family. They all also told me that they could not tell any adults because Mr. S. was their grandfather. They loved him. All the grandchildren loved their grandfather. The risk of the destruction of those fundamental affectionate feelings for Mr. S. was too much for these young girls. 3. Mr.

S.'s offences spanned 17 years and involved four separate grandchildren. 4. Mr. S.'s offences do not involve intercourse or vaginal penetration, but his use of M.P. and R.F. to masturbate him to ejaculation, coupled with his intrusive French kissing of the girls, and the emotionally destructive effect that has had on these grandchildren, must be clearly denounced in my sentence. 5. Mr. S. is 68 years old. He has significant health problems, some strong family support, and no criminal record. [ 49 ] In my view, the appropriate range of global sentence in Mr.

S.'s case is three to six years in a federal penitentiary. [ 50 ] Mr. S., I am going to impose sentence now, but I will not require you to stand up. For all of the reasons I have given, Mr. S., I impose the following sentences upon you. [ 51 ] For your offences against M.P., I impose a four-year jail sentence. For your offences against R.F., I impose a two-year jail sentence, to run consecutively to the four-year sentence I have imposed. For your offences against M.R., I impose a three-month jail sentence, to run consecutive to the other two sentences I have imposed.

For your offence against S.S., I impose a three-month jail sentence, to run consecutive to the three sentences I have imposed.

[ 52 ] Those four jail sentences running consecutively total six-and-a-half years in jail. Taking into account the totality principle, I will reduce that global sentence from six-and-a-half years to four years in jail. To achieve that global sentence, you can mark the warrant of committal such that all of the sentences will run concurrently. [ 53 ] In terms of ancillary orders, first, I order, Mr.

S., that you will provide a sample of your DNA for registration in the Federal DNA Databank. [ 54 ] Second, I order that you are to be registered for life as a sex offender, pursuant to the Sex Offender Information Registry Act , and I have signed that separate order, which I will hand down in a moment. [ 55 ] I will also make the orders the Crown seeks pursuant to s. 161(1)(

b) and (

c) which will prohibit you for a period of ten years from, first, seeking, obtaining or continuing any employment, whether or not the employment is paid employment, or from 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 old. [ 56 ] Secondly, you are prohibited for a period of ten years from having any contact, including communication by any means, with a person who is under the age of 16 years, unless you do so under the supervision of a person who the court considers appropriate. [ 57 ] Here is the order I have signed.

That concludes my decision. [ 58 ] MR. SAYSON: Yes, just to clarify for Madam Clerk's record of proceedings, the DNA order and the SOIRA order, as well as the 161 order, applies to each and every count? [ 59 ] THE COURT: Correct. (SUBMISSIONS BY COUNSEL) [ 60 ] THE COURT: Pursuant to s. 743.2(1), I will order that Mr.

S. is to have no contact, directly or indirectly, with any of the four named complainants in the case, and pursuant to s. 743.2, I will order a transcript of my Reasons for Sentence to be prepared and to be forwarded to the Correctional Service of Canada, and that the warrant of committal have attached to it the Pre-Sentence Report and the Psychological Assessment. (REASONS FOR SENTENCE CONCLUDED)