R. v. McLeod, 2014 ONCJ 671

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

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

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

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

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

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

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

i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(

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

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

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

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

summary conviction. ONTARIO COURT OF JUSTICE DATE: 2014·12·11 Citation: R. v. McLeod , 2014 ONCJ 671 BETWEEN: HER MAJESTY THE QUEEN — AND — NORMAN NEIL McLEOD

Before Justice D.P. Cole Heard on September 9, 2013; June 30, October 6, 2014 Reasons for Judgment released on December 11, 2014 M. Iny ...................................................................................................... counsel for the Crown C. Fromstein ....................................................................................... counsel for the accused COLE J.: REASONS FOR SENTENCE Overview: [ 1 ] During the 1960s and 70s Mr. Mcleod was an elementary school teacher and scoutmaster in the Swansea area of Toronto [1] .

He owned a cottage in the Kawartha Lakes area north of the city, to which he would frequently take teenage members of his scout troop. While at the cottage he would invite them to enjoy recreational activities in exchange for performing/participating in a variety of sexual acts. [ 2 ] In 1979 six scouts complained to the local police in Lindsay, Ontario about the offender’s improper sexual touchings. Mr. Mcleod was arrested and charged with indecently assaulting these boys.

He pleaded guilty to these charges in 1980, for which he was sentenced to 6 concurrent custodial terms of 3 months, followed by probation for 3 years. [ 3 ] Sometime in the fall of 2011 the victim A.H. (by then approximately 50 years of age) saw an unrelated television program “about abuse and cover-up within Scouts Canada”. He was so upset with the spokesperson for Scouts Canada’s “obfuscating, condescending non-answer [about whether] Scouts Canada would be cooperating with the police” that he decided it was time for him to complain about what Mr.

Mcleod had done to him – “two days later I was telling my own story at 22 Division”. [ 4 ] The Toronto police conducted an investigation, part of which was to encourage other victims to come forward. Six others did, and Mr. Mcleod was formally charged with a variety of offences on November 7, 2011, to some of which he has now pleaded guilty.

Allegations of Delay in the Prosecution of this Case: [ 5 ] Some of the written Victim Impact Statements (VIS) filed in this case, combined with oral comments made by some victims during court proceedings, complain about what they perceive as inordinate delays in the progress of this case.

Given that these charges have been pending since November 2011, and that some of the victims completed their written VIS as early as March/April 2014, it must have been frustrating for those who wished to read their statements aloud to the court not to know when they would have their opportunity to do so, or when the case might be completed.

Thus, it is important that I explain to these victims and other interested members of the public why this case has taken as long as it has to come to a final resolution. [ 6 ] Once the Crown had substantially fulfilled its constitutionally required obligations to make disclosure of the evidence to the defence, this case was randomly referred to me by the court’s Trial Co-ordinator as part of the normal process of arranging for the scheduling of lengthier cases. To this end, counsel first met with me in Chambers on February 4, 2013 to conduct a judicial pre-trial.

Ms Fromstein for the defence immediately made it clear that, while she was prepared to act for Mr. Mcleod for the time being, the accused was just completing the process of declaring bankruptcy, so he could no longer afford to retain her privately. While an application for legal aid (LAO) funding was now pending, Ms Fromstein indicated she had been told that LAO officials were unlikely to provide a certificate authorizing her to represent the accused. She required further time to clarify these matters with LAO officials; in the event they decided that Mr.

Mcleod did not fit LAO’s financial criteria, Ms Fromstein indicated that she might have to launch a special application for court-ordered funding by the Attorney General’s office (called a “ Rowbotham Application”). As a result, Ms Fromstein indicated that she would not be prepared to continue acting for Mr. Mcleod unless and until her retainer could be arranged.

[ 7 ] It is also important to understand that during this first judicial pre-trial Ms Fromstein made it clear to myself and Crown counsel Ms Iny that if and when she became properly retained, and had an opportunity to review Crown disclosure in detail (portions of the disclosure were still being made at the time of this judicial pre-trial), her preliminary instructions from Mr. Mcleod were that he might be prepared to enter pleas of guilty to some of the charges.

Unfortunately, this took many months to work out, all of which was discussed during eight further judicial pre-trials over the spring and summer of 2013.

Crown counsel Iny indicated on several occasions that she would do what she could to assist Ms Fromstein in processing the anticipated “ Rowbotham Application”, but that she was not authorized to take any position on behalf of the Ministry of the Attorney General, as Rowbotham applications are handled by the Civil Law branch of that Ministry, not by Crown Attorneys. [ 8 ] Eventually, despite her lack of assurance of her retainer, Ms Fromstein negotiated with Ms Iny the charges to which Mr Mcleod would plead guilty, and the facts that would be placed before the court in support of these pleas.

This occurred in open court on September 9, 2013, at which time, it is important to note, Ms Fromstein had still not yet managed to finalize her retainer; thus, in the best traditions of the Bar, she was acting for Mr. Mcleod for the time being on a pro bono basis. To that end, it was agreed between myself and counsel that the case would essentially be placed on hold until negotiations between LAO, the Ministry of the Attorney-General and Ms Fromstein could be finalized, all of which unfortunately took several more months.

This was further complicated by the possibility that, depending on whether Ms Fromstein might make additional admissions of fact – something that she was not prepared to commit herself to until her retainer was secured – further court time might have to be reserved to allow Ms Iny the opportunity to prove certain aggravating facts (a “ Gardiner ” hearing); as a result of sensible compromises made by both counsel this possible further evidentiary hearing became unnecessary. [ 9 ] When Ms Fromstein’s retainer was finally secured, she arranged for Mr. Mcleod to be assessed by Dr.

Julian Gojer, a forensic psychiatrist. That process of assessment – combined with psychological testing and counselling (described below) – took several months to complete; unfortunately, because of the need for him to incorporate the results of psychological testing and counselling, Dr. Gojer’s report could not be completed and delivered to counsel until June 20, 2014, ten days before the victims were supposed to have an opportunity to read their Victim Impact Statements in open court.

Upon receipt of that report, Ms Iny indicated that she was not prepared to accept it as accurate until she had an opportunity to have it evaluated by a forensic psychiatrist retained by the Crown, which meant that the date for sentencing submissions - and for hearing from those victims who wished to read their statements in open court - had to be further delayed from June 30, 2014 until the fall. [ 10 ] Once the psychiatrist retained by the Crown had scrutinized Dr. Gojer’s report – and indicated that he agreed with Dr.

Gojer’s methodology and conclusions - sentencing submissions and the presentation of victim impact evidence were finally heard on October 6.

To this I should add that due to the pressures of my own case load, I have had to take until today’s date to review the considerable volume of case precedents counsel have placed before me, to consider the radically different positions of counsel and their arguments in support of their respective positions, and to review the victim impact evidence. [ 11 ] Thus, while the delays have no doubt been very frustrating for both the victims and the offender, I am satisfied that there is absolutely no evidence that Mr.

Mcleod has been “manipulat[ing] the courts in dragging this matter out as long as possible”, as alleged in one victim impact statement (Exhibit 3(b): Victim Impact Statement of A.W.), or that “the last nine months…delays were tactical ones used by [the offender’s] lawyer to stall the process” (Exhibit 3(d): Victim Impact Statement of N.J.). Nor has defence counsel acted in a “niggling” manner (Exhibit 3(a); Victim Impact Statement of A.H.).

Nor have Crown counsel and the investigating officer acted in a “completely repulsive and scandalous [manner by] deceiv[ing] and ly[ing]” to another of the victims (Exhibit 3(c): Victim Impact Statement of S.J.). The delays revealed in this case, though unfortunately not at all uncommon, are systemic, not intentional.

The Facts of the Offences and the Impacts on the Victims: [ 12 ] Though the general pattern of indecently assaulting scouts at the offender’s Kawartha Lakes cottage (and occasionally at various locales in Toronto) is mostly the same for all seven victims, the dates of the offences and the nature and frequency of what was done to each of them are sufficiently different that they should be separately described. While there are many ways I could present this evidence, I have decided lay out the agreed facts alphabetically i.e. according to the last name of each scout.

Because the VIS written by the four direct victims who elected to do so provide useful context to the factual allegations, they will be presented immediately following each set of facts. A.A. - The Offences (Offence Period: 1 January 1974 – 31 December 1979): [2] [ 13 ] As with the other victims A.A. was invited to the offender’s cottage, starting when he was about 12 years old. From time to time he would be invited into a loft area of the cottage where, after being encouraged by the accused to look at Playboy magazines the boys in

attendance would be told by Mcleod or R.P.H. (see paras. 25, 44 infra ) to compare their penis sizes (called “the boner contest”). This in turn led to him giving the accused a backrub, which in turn led to him being told to rub the accused’s groin. This type of activity and mutual masturbation persisted until A.A. was about 15 years old. He estimated that it occurred some 10-20 times. [ 14 ] A.A. did not file a Victim Impact Statement.

Nevertheless, it was an agreed fact that “the abuse so profoundly affected A.A. the when he was in his late 30’s, he wrote the accused a letter and telephoned him…to confront his accuser and voice the extent the harm caused”. Further, he told the writer of the pre-sentence report (PSR) that “the subject’s actions made him question his sexuality, causing confusion and ‘screwed up relationships’. He said he went through therapy in his 20’s and is going through it again now as a result of the court case”.

M.C. - The Offences (Offence Period: 1 September 1975 – 30 June 1978): [ 15 ] The circumstances and pattern of abuse committed by the offender (and R.P.H.) against M.C. are generally quite similar to those described by other victims. In M.C.’s case the abuse started when he was about 13 and continued until he “aged out” of the scouting program at 16. He estimated that he was abused either by the offender, by R.P.H. or by both on some 10-12 occasions. [ 16 ] Unlike the other victims, there was one occasion where oral sex occurred.

This of course is a separate offence for which the offender should be additionally punished. M.C.’s Victim Impact Statement: [ 17 ] As with the other victims M.C.’s VIS describes how “the crime committed by Norm Mcleod upon me has inflicted mental injury [and] emotional trauma”.

He recites that the “the repeated acts of this crime left me confused, questioning my own sexuality and feeling ‘different’ or ‘not right’.” He describes consistent feelings of distrust, guilt and feeling unworthy of anyone’s love, which left him “spending my youth socially isolated, ashamed, depressed, unable to relate to peers and feeling like an outcast”. [ 18 ] M.C. also states the crimes committed against him “caused me significant economic loss”, in that, “I required the need for psychological therapy in order to overcome some of the damage inflicted and lead a healthy married lifestyle.

Numerous visits and hundred dollars [hundreds of dollars?] later allowed me to realize that I was a victim and it was not my fault”. Nevertheless, “inside my head, I still bear the scars of the crime and even thoughts of seeing him again stir awkward emotions and a dark reminder of my teenage years”. A.H. - The Offences (Offence Period: 1 January 1974 – 31 December 1976): [ 19 ] A.H. was 13 years old when he was referred by his mother to the scouting program run by the offender.

A.H.’s father was absent from the family unit, and his mother “was desperate for him to participate in an activity with a male role model….She believed that since [the scout troop] appeared to be affiliated with the church that her son must attend”. [ 20 ] As with the other victims, the offender began to sexually assault A.H. during trips to the accused’s cottage. These assaults usually took place in the loft area where the offender and R.P.H. slept. It was understood among the boys that if one were to refuse an invitation to join the men in the loft, a Scout might not be invited back to the cottage in future.

This was particularly difficult for A.H., as he was acutely aware that the financial burden on his mother was such that she could not afford to provide her son with other activities and opportunities equivalent to those offered by the offender. Thus, on some 10-20 occasions over the next two years A.H. endured fondling by and mutual masturbation with the offender, sometimes with R.P.H. as a willing third party. [ 21 ] Concerned that the secrets known to these scouts would become known at the high school many of these boys attended, the victim left the scouts for fear that he might be labelled “a faggot”.

His resignation from scouts was very upsetting to his mother, who refused to believe his stated reasons for leaving. A.H.’s Victim Impact Statement:

[ 22 ] Though A.H. originally indicated to Det. Morris that he wished only to submit his VIS to the court, he decided that he wished to read it to the court.

I found his recitation of the downward spiral that his life took in the years following his victimization to be extremely powerful – diminished self-esteem, alienation from mother, heavy drinking and prolonged drug abuse, inability to sustain personal and romantic relationships, episodes of homelessness, petty crime (both detected and undetected) and, above all “ ANGER and disgust and shame and rage and loathing”. [ 23 ] It does appear that in the last few years A.H.’s life has stabilized somewhat.

Following one of his criminal charges: “I…got probation and attended a structured relapse prevention program and John Howard Society with Peter Markwell….Peter and that course were…fantastic! I came through with flying colours…and I have the highest praise to heap on those people. I had understood what it is to channel anger into productivity. I do volunteer work. I take yoga. I had stable housing and income to cover it. I had many wonderful friends. No crack. I read and write a lot. I sing. But…I still cry when I hear of abuse, or a neglected child….I still carry a huge weight of hurt and pain.

I still burn but I have hope.” In relation to these pending proceedings [3] A.H. writes: “But the pressure I`ve felt to write this Victim Impact Statement has been immense. Then I hear from the Probation Officer [assigned to write the Pre-Sentence Report] asking me to tell her how I feel and to get this [VIS] written. And my head feels like a volcano about to erupt. I can’t sleep. When I do, dreams are bad and I can’t figure out how to express my feelings about something I spent so much time trying to forget and happened 40 years ago.

So between all these delays and information and requirements, I`m going nuts here. Just the fact of the word `probation`, makes me say `what the hell? He hasn`t done any time yet`. No it`s me and all his other victims that are doing time, just waiting it out until we can be released to get on with our lives. That`s all I feel now – that I just want to get on with my life and not have the pall of a foul stench hanging over me anymore. I want to be able to see and breathe clearly.

I want to be free.” [4] R.P.H. - The Offences (Offence Period: 1 January 1968 – 9 February 1974) [ 24 ] When he was approximately 10 years old, the victim met the offender, “initially through the neighbourhood and then later through the scout system”. The offender was older than this youngest victim by some 18 years. Even before the victim became of age to join the scouts, the offender began to sexually victimize him by fondling and groping.

The vast majority of these assaults took place at the offender’s cottage, but some also occurred at the offender’s home in Toronto. [ 25 ] In addition to what seem to have been hundreds of indecent assaults committed against this victim, R.P.H. was also present when the offender improperly touched other boys. Further, “he also witnessed Mcleod verbally abuse, control and manipulate [other] boys over the years”. Most troublingly, “Mcleod ultimately lured and groomed R.P.H. to assist him or enable him to commit offences on other young boys.

In particular, Mcleod manipulated R.P.H. and exerted pressure on him such that R.P.H. ultimately would assist the accused by driving the young boys to the cottage on weekends and playing the lookout while the accused fondled the boys...R.P.H. knew that Mcleod’s actions were wrong but [was] afraid or intimidated to report him or otherwise bring the actions to light”. I shall refer to this later in these reasons. [ 26 ] Perhaps because until late in these proceedings R.P.H. still stood accused of some of the same offences as Mr. Mcleod, he did not file a Victim Impact Statement.

When contacted for input by the writer of the Pre-Sentence Report, R.P.H. “passed the phone to his wife”. She reported that when she and her husband started dating approximately 20 years previously, Mr. Mcleod “had this control over R.P.H. and ‘R.P.H. was under his thumb so badly’”. However, she also reported that “once they were married the relationship distanced itself”. Confusingly, Mrs.

H.’s statement to the probation officer seems to be at odds with something contained in the Agreed Statement of Facts, namely that “[Mcleod and R.P.H.] remain in close contact to date and R.P.H. is a named executor of the accused’s estate.” In the absence of direct commentary from R.P.H., I propose to act on the assumption that R.P.H. takes a neutral view of Mr. Mcleod, particularly if he is still willing to act as his executor. This places him in a different position from that of the other six victims, in that, on the record before me, he does not appear to bear any particular animus towards the offender.

S.J. - The Offences (Offence Period: 1 January 1973 – 31 December 1974): [ 27 ] S.J. was 12 years old when he joined the scout troop run by the offender in the summer of 1973. He was soon invited to join the offender, R.P.H. and other boys at the cottage. The offender appears to have particularly singled out this victim in a number of ways. First, he humiliated him considerably among his peers by providing him with a particular nickname which suggested – as the victim puts it in his Victim Impact Statement – “that I was in essence a promiscuous 12 year old homosexual whore”.

Other boys who were present from time to time at the cottage remember this nickname and its connotations. [5] Importantly, they also recall that S.J. “was one of the accused’s so-called favourites”. [ 28 ] In terms of sexual activities, this victim was regularly invited to the loft area in the cottage, where either the offender fondled him or he was instructed to masturbate the offender. The victim “understood that he would be performing sexual acts on the accused and his friend R.P.H. as a type of compensation for participating in water skiing, archery, camping, boating and snowmobiling”.

These activities went on over a period of about two years until the victim refused to attend scouts any longer. Unlike the other cases, I was not provided an estimate of the number of occasions on which indecent assaults occurred. I think it fair to act on the assumption that it was more frequent than with M.C., A.H. and A.A., but less frequent than with R.P.H. S.J.’s Victim Impact Statement: [ 29 ] S.J.’s very lengthy Victim Impact Statement, which he read to the court, is divided into three parts. The first deals with the immediate effects of the offender’s sexual acts on him.

I quote them in detail because it is obvious that after over 40 years [6] since he was first assaulted, he recalls with startling clarity the effect of the offender’s gross breach of trust: “By sexually assaulting me NNM committed acts that shook the very foundation of my being. It was an affront in many ways as it violated not only my body but also my personal beliefs and values. My mind was thrown into turmoil as I tried to understand why a man would be touching a boy in that way.

At age of 12, I had known for many years already that I like girls and knew about the concepts of being straight or queer, I understood what each was. I understood myself to be a normal boy with normal thoughts about physical attraction between myself as a boy, and girls. Up until this point in my life I had no experience involving sex with another person. I hoped that one day that my first experience would be with a girl that I liked from my class at school. Instead my first sexual contact with another person involved NNM on a camping trip, groping me in the middle of the night while I lay sleeping.

When NNM sexually assaulted me he crossed a boundary that for me was one that I knew should never be crossed. I understood that he was the sort who was considered strange because he was queer, a pervert and that what he had done to me was wrong in a most fundamental way. He was a man (gender male) having sex with a boy (gender male), and an adult having sex with a child, which was to my belief a mortal sin. Not only was it sexual assault but I now feel that it was what I would call sexuality assault as well because NNM was a homosexual having homosexual sex with a boy he knew was heterosexual.

He knew this because he had offered and made openly available to all of the scouts magazines such as Playboy, Penthouse and Hustler. He witnessed me viewing these magazines…. Several lines had been crossed and the magnitude of the sin being committed was in my mind, monumental. I felt that I was an accomplice to this sin, as though there were some fault of mine and that I was in part to blame for this behaviour and the acts that took place. Ashamed, I knew that I must hide this disgrace by not saying anything to anyone and rather than seeking help I chose to suffer in silence and started looking for a way out.”

S.J. then goes on to discuss how it was impossible for him to raise these traumatic matters with his parents, in part because they both had long involvement with, and positive views of the scouting movement. When he finally dreamed up an excuse to drop away from scouting, he knew that his parents were aware that he had not been honest with them, which in turn “caused them to scrutinize my behaviour more closely and monitor my activities.

Parental trust which in the past allowed me some freedom was now gone”. [ 30 ] The second portion of S.J.’s Victim Impact Statement contains trenchant commentary on the need to make more preventative and support services available for child victims of sexual exploitation by adults. While no doubt an important message for policymakers to hear, since this portion of his VIS does not particularly assist me in the task I must perform, I will not address it further.

However, S.J. then goes on to talk about how the lack of services and positive role models has tended to contribute to his social isolation, factors I can properly take into account in evaluating the harm done to him by being the victim of these offences. He writes: “Stigma associated with being sexually and homosexually abused and the shame, and fear of having my sexuality questioned makes it next to impossible to find anyone to talk to about my experience. It is just too grotesque a story for the average person to deal with and it is not one that is shared with any but the closest of friends and family.

This doesn’t leave very many people to talk to and even one’s friends and family can be very closed off about this subject. Which has been and is the case for me so I have suffered in silence and I have spoken to nobody about it except my wife and daughter.

With no one to talk to, not friends, family or heath care providers I am left feeling quite alone and isolated in carrying the burden of all these experiences and memories. … This difficulty to trust other people has impacted upon my ability to develop and maintain friendships both during childhood and adulthood and to develop and maintain a stable long-term relationship with a significant other as an adult. Physical closeness, especially involving being touched can trigger flashbacks and negative emotions, so it is hard to be physically close to others.

Even now with my wife whom I am physically close with, there are times when I can feel anxiety. When she is standing behind me hovering and looking over my shoulder can make me feel tense and I can become agitated.” [ 31 ] The final portion of S.J.’s VIS consists of a series of vituperative criticisms of delays and lack of transparency of the criminal justice system generally, the supposed lack of education for criminal justice personnel about “the subject of boys being sexually assaulted by men”, and the behaviour towards him by Crown counsel, victim services at Metro West Court and the investigating officer.

Indeed, at one point in the proceedings while I was leaving the bench (and after the court reporter had shut down her machine) S.J. was heard to tell Crown counsel and Det. Morris to “fuck off” and warned them in a most belligerent tone that “they would soon be receiving [his] letter of complaint”. I shall ignore both these comments in the VIS and his intemperate and discourteous outburst in the courtroom, as they are simply irrelevant to my determination of the appropriate sentence. [ 32 ] I do however consider it necessary to respond briefly to two other aspects of the third portion of S.J.’s VIS.

The first is where he makes numerous derogatory comments about the offender’s personality, culpability and future prospects. [7] This clearly ignores the written direction to victims at the beginning of the printed VIS form, which reads: “Please focus on providing a description of the impact of the crime on your life. Quite understandably emotions run high in these situations but it is important not to include vengeful comments, criticisms or rumours about the accused.

Such comments will not assist the judge and may detract from your statement.” [ 33 ] Similarly when S.J. suggests that unless I impose “the longest possible sentence accompanied by the strictest of conditions”, I will not be “judicially support[ing] boys who deserve to have a childhood that is free of sexual interference…”, he ignores another portion of the written direction to victims: “Please do not include suggestions about the sentence.” [ 34 ] I shall ignore both of these areas of commentary, as they amount to “special pleadings” that I am not allowed to take into account.

In the same vein, despite the fact that S.J. regards the advocacy he has received from Crown counsel, victim services and Det. Morris as

so deficient that at one point during sentencing submissions he attempted to add his voice, the law is clear that he is not a party to these proceedings, and has no right to be treated as such (R. v. Gabriel (1999), (ON SC), 26 C.R. (5th) 364 (Ont. Ct. (Gen.Div.)). [35] S.J.’s wife and teenage daughter both prepared and read their Victim Impact Statements in court. Though thoughtfully written,they do little more than confirm the high levels of stress – some emotional, some physical - that S.J. has been going through since hereceived a call from Det. Morris in early 2012 asking what he knew about Mr. Mcleod.

As such, they are not particularly useful inassisting me “in determining the sentence to be imposed” (Code s.722(1)). D.R. - The Offence (Offence Period: 1 July 1979 – 31 August 1979): [36] This 15 year-old victim was a member of another scout troop whose membership was declining. Knowing this, Mr. Mcleod invitedmembers of that troop to join his troop at a Jamboree held in Brantford. After this event the offender invited D.R. to come to his cottagewith other scouts who were members of the offender’s troop. That evening he was invited by the offender to join him and R.P.H. in theloft area.

Once there the offender removed his clothing and instructed D.R. to masturbate him while R.P.H. watched. [37] D.R. apparently hoped that the passage of time “would heal the anger and resentment resulting from the abuse, but it did not so hecame forward after seeing the news story about the accused’s arrest”. [38] D.R. did not file a victim impact statement, but he told the writer of the PSR “that what happened to him has affected his ability tobe open with people, to have ‘good, lasting relationships’ and a healthy emotional life”.

He told the writer that when he and his wifedivorced, his wife told him that one of the reasons she sought a divorce “was that she was afraid of him and what he would do to a child”.In result, he told the writer “he is afraid to share his past with others because they may turn against him”. A.W. - The Offences (Offence Period: 1 January 1966 – 31 December 1967): [39] A.W. joined the offender’s Scout Troop sometime in 1966, when he was thirteen years old. The theme of the scouting Jamboreefor that year was Aboriginal culture.

To this end the boys, including A.W., went to the Toronto church where the scouts would meet, atwhich time “they were personally fitted by the accused for loincloths worn without underwear”. As the offender sewed the loincloth thescout was required to try it on. When it was A.W.’s turn, the offender intentionally touched A.W.’s covered genitalia for a sexualpurpose. [40] In 1967 A.W. achieved the considerable honour of being named a Queen’s Scout. In celebration of this, the offender agreed todrive A.W. and five other scouts to a Jamboree in Idaho.

At night they would all sleep in a camper trailer, the configuration of whichmeant that two would have to share each bed. On the night that the offender was paired with A.W., he waited for the boy to fall asleep,whereupon he fondled A.W.’s genitals. A.W. awoke and fled to a picnic table, where he spent the rest of the night. When A.W.explained to the rest of the boys why he had spent the night outside, the offender told them that it was in fact A.W. who had initiated theimproper sexual contact.

This lie was repeated when the offender reported to A.W.’s mother that her son “was a problem during the tripdue to lying and telling stories”. [41] As I was writing up the facts of this fondling incident as part of this judgment, I noted that according to what had been agreed to inrelation to this charge of gross indecency, it appeared that this behaviour had taken place in the United States. I immediately drew this tocounsel’s attention. After considering this further they agreed that this was not an offence that had occurred in Canada; as such theaccused should not have been arraigned on this charge.

Nevertheless, counsel agreed (following the decision of the Supreme Court ofCanada in Larche v. The Queen 2006 SCC 56 , [2006] S.C.J. No. 56, particularly at paras. 46-7) that I could – and should – takethese facts “into account” within the meaning of s.725(1)(

c) of the Code. As the penalties for offences “taken into account” aresomewhat different from normal sentencing principles, I shall discuss this further when I discuss the penalties to be imposed in relation toA.W. A.W.’s Victim Impact Statement: [42] A.W.’s “comments on the impacts of the assaults inflicted on me by Norman Mcleod” thoughtfully and eloquently address the

harm caused to himself and to the other child victims of sexual abuse. For this reason I have decided to quote from it extensively: “Norman Mcleod stole several things from me (actually, he ripped them out of me). He took my feelings of honour, confidence, innocence and enthusiasm and replaced them with fear, confusion, uncertainty and anxiety. These are precious principles and attitudes that he can never give back. It took me a long time to find them again, and even then never completely.

I had originally decided NOT to submit an impact statement, largely because in the many years since Mcleod assaulted me, I spent considerable time and energy trying to reconcile within myself the many negative impacts of his abuse – confusion as to sexual identity, guilt, anger, sleepless nights, substance abuse, at time depression and intense feelings of betrayal of the principles which I had been taught, including those espoused by Mcleod himself. Norman Mcleod not only assaulted me, he also attacked my family.

His statements to my mother after his last assault on me that I was a liar and a storyteller were an attempt on his part…to taint and devastate the otherwise close relationship that I had with my father and mother as I was growing up and into my adult years. Despite these many challenges, after many years of turmoil and anguish, I eventually reached the point where I realized that I had to stop giving Mcleod any further power over me. I chose to no longer identify myself as a victim and decided to try to get on with my life in a positive and productive way.

That sense of resolution changed dramatically a couple of years ago when many more episodes of abuse by Mcleod came to light in the media. When I learned there were other victims aside from me, it was the start of a period of renewed confusion, anger and anxiety as I was forced to relive his assaults. … …[P]erhaps the most offensive and disheartening aspect of this whole affair for me is Mcleod’s deceitful charade as a respected Scout leader, school teacher and church elder while all the while perpetrating cruel abuses on the kids entrusted to his care.

Throughout his “Reign of Terror”…Norman Mcleod has sullied the very principle of HONOUR he has sworn to uphold.” [8]

Summary of Findings Regarding the Seven Victims: [ 43 ] While each has responded somewhat differently to their victimization and traumatization, it is patently obvious that the offender’s criminal actions have significantly and profoundly affected each and every victim, to the point where, over forty years later, they all continue to suffer the psychological sequelae of his disgraceful breaches of trust. None will ever forget what the offender did to them, even if, as in some cases, there was only a single incident of molestation.

Sadly, and more importantly, some will no doubt continue to be negatively impacted in their ability to enjoy life and the full companionship of friends, family and children. [ 44 ] Despite the fact that R.P.H. would himself frequently fondle and grope some of the boys he or the offender brought to the cottage, Crown counsel ultimately elected to discontinue concurrent criminal charges laid by the police against R.P.H. as part of this investigation.

That was a decision entirely within the province of Crown counsel to make, and it does not fall to me to comment on or derive any inferences from her exercise of discretion. However, even though R.P.H. was himself at some point a victim – as the offender’s plea of guilty in relation to sexual offending against R.P.H. clearly discloses – it seems to me entirely obvious that R.P.H.’s presence as a driver would have served to reassure parents that their children would be well looked after if two adults were present.

More importantly, when R.P.H. aided and abetted the offender in committing sexual acts against these young teenagers, his presence must have been intimidating, especially when it is realized that the cottage was in an extremely isolated area. I find that the offender knew of and exploited these two factors, both of which I consider to be particularly aggravating. In my view, as Crown counsel suggested in her submissions to sentence, that renders the offender’s moral blameworthiness both predatory and premeditated.

The Positions of Counsel: [ 45 ] Crown counsel took the position that a total custodial sentence of 6-7 years is necessary to denounce and deter Mr. Mcleod’s appalling acts, particularly given the number of victims, the length of time over which he offended, and, above all, his position of trust and his egregious breaches of that trust.

[46] Defence counsel took alternative positions. She primarily urged that I impose a maximum “conditional sentence” of two years lessone day – essentially a jail sentence served in the community subject to continued good behaviour while under “house arrest” (backed upwith the ability to immediately place the offender in custody should he not be considered to be living up to his conditional releaseconditions). [47] Following the important decision of the Supreme Court of Canada in R. v.

Proulx (2000), 2000 SCC 5 , 140 C.C.C. (3d)449, defence counsel often offer an alternative position in case a sentencing judge is not persuaded that a conditional sentence isappropriate.

When I queried Ms Fromstein on this issue, she took further instructions from her client, and proposed that if I reject herarguments in favour of a conditional sentence, I should impose a total custodial sentence of two years to be served in penitentiary, notsome lesser amount to be served in a provincial reformatory. (Unfortunately, given what I know of the violence in provincial institutions,I think this was a very sensible alternative position for Ms Fromstein to take, particularly given her client’s age). [48] It is convenient to interrupt the narrative at this point to dispose of one issue that both counsel agree is not relevant in this case.

Anoffender who has spent time in pre-trial custody is usually entitled to some reduction in any custodial sentence ultimately imposed toreflect that time spent in pre-trial custody. Since Mr. Mcleod spent less than a week in custody before being admitted to bail, counseljointly agreed that, given the amounts of time at issue here, I should simply ignore that period of a few days. With this I agree. [49] Counsel were in agreement that a number of ancillary orders should be made.

These are that: (1) an order for the taking of theoffender’s DNA should be made (Code s.487.04(b)(vi)); (2) a Sex Offender Information Registration Act (SOIRA) order should be made(Code s.490.011(d)(iv)); and (3) an order prohibiting the offender from being in the presence of children under the age of 16 in certaincircumstances is available (Code s.161(1.1)(c)).

Given this agreement I shall not make further reference to these orders except toincorporate them formally into my judgment at the end of these reasons. [50] Crown counsel did not propose that there was any need for a weapons prohibition order given the factual circumstances of theseoffences. With this I agree. [51] Neither counsel addressed whether I should make an order pursuant to s.743.2(1) of the Code, precluding the offender from havingany contact with any of his victims while he is in custody serving sentence.

Given that none of them reported that he has had any directcontact with any of them for several decades, such an order seems unnecessary. For the same reason I see no need to make an orderpursuant to s. 161(1)(a.1) of the Code. The Background and Present Circumstances of the Offender: [52] At my request a Pre-Sentence Report (PSR) was prepared by a probation officer to assist in the process of determining theappropriate sentence. It discloses that the offender was born on June 25, 1940, which means that he is now 74 ½ years old.

His period ofoffending (for the offences I am now considering) occurred during an approximately 14 year period when he was between 25-39 yearsold. [53] The offender was the younger of two children, born in Toronto to a dentist and his homemaker wife.

After obtaining his highschool diploma the offender attended teacher’s college for one year, obtaining a certificate which led to employment as a school teacherfor the Toronto Board of Education at Swansea Elementary School, where he remained for some 19 years, until he was fired consequentupon his convictions[9] for the 1980 sexual offences against children.[10] In order to replace his income the offender became a realestate agent; however, as a result of his degenerative disc condition he was unable to work very hard at this employment so he was forcedto supplement his income through ODSP, which stopped when he reached age 65.

At that time he began to receive pension income. Hetold the probation officer that he has supplemented his pensions by living off the proceeds of sales of his family home and acondominium. As previously noted, he declared bankruptcy as of March 31, 2014. He now lives modestly in a rented apartment with aroommate, who assists him with rent payments. [54] The offender reported that he lived in his parents’ home until age 28, when he married a woman whom he had known from highschool. The marriage lasted 12 years, but his wife left him when he was convicted of the 1980 offences. There were no children of themarriage.

He told the probation officer that he has had no other significant romantic relationships since his wife. Upon release fromcustody the offender moved back home to look after his mother until she was placed in a nursing home in 1990. [55] Once the offender’s probationary period had concluded in 1984, he told the writer of the PSR that “his social life became the

committees he was part of at the Swansea Town Hall”. The PSR discloses that he was very active in a number of roles within that volunteer organization over many years. [11] The offender stressed to the writer that in his various roles “he was on the management side and was never alone with children”. [ 56 ] Both the PSR and defence counsel’s book of Sentencing Materials (Exhibit 5) contain materials suggesting that the offender has several friends who have supported and continue to support him over the years, in full knowledge of his previous offending.

To cite one example, a letter was received from Ms Joyce Jennison, who also attended both the present sentencing hearing and had attended the 1980 hearing in Lindsay. She describes herself as “an elder at the [Morningside High Park Presbyterian] church that Norman has attended all his life and [I] have found him to be a very active and effective member in fundraising, establishing archives and promoting activities”.

Consistent with what some other letters said, Ms Jennison writes that “I have known Norman to be a very kind and helpful person to many people in the community, taking older people to appointments, shopping, and helping with problems in their homes”. She adds (somewhat wistfully): “I am saddened by this situation, and feel for everyone involved, but as I have witnessed only acts of kindness and thoughtfulness towards others in Norman I ask myself, as a Christian, what does one have to do as atonement, or as reparation for a past wrong, in order to hope for a readiness to forgive from others”. [ 57 ] Rev.

William Ingram, who both wrote a letter and attended the sentencing hearing, had come to know Mr. Mcleod during his time as Minister at the same church from 1996-2007. He writes: “By his own choice – and by direction of the church leadership because of his previous convictions – Norm was not involved with any programs that involved children or young people. Instead, he was very dedicated and active in other parts of the congregation’s life and work, including compassionate service to middle-aged and elderly members of the community.

During my time as the minister in that congregation, I was never aware of any inappropriate or objectionable behavior in any of his interactions” (my emphasis). He adds: “I have had the opportunity to speak with Norm, in person, following the recent allegations and charges. He expresses remorse for what happened, and a continued determination to ensure that there are no further victims or offenses”. [ 58 ] The reason I have highlighted a portion of Rev. Ingram’s letter is because it stands in stark contrast with observations made to the writer of the PSR by his successor Rev. Karen Dimock.

She explained that when the offender stopped attending church in light of some publicity surrounding the current charges, she and Dr. Alison Williams, a church elder, began to have contact with the offender through pastoral visits to his home. Both described that, in light of the offender’s history of sexually abusing youth, they became very uncomfortable with what they perceived to be his relationship with his present roommate D.H. The PSR writer notes in her report: “Reverend Dimock reported that Mr. H. presented as “very vulnerable” and appeared to be a teenager.

She found out afterwards that he was in his early 20s but he presented as much younger than his stated age. She felt there was an age difference and “power dynamic” at play in this relationship that was unhealthy and that the subject was exerting control over this young man. At her last home visit with the subject in February 2014 she attempted to ask Mr. H. some general questions and that he would not answer any of her questions without looking to the subject for consent. She also attempted to give Mr. H. her business card in case he required any support but that the subject took the card instead (sic).

She observed that Mr. H. appeared to be very dependent on the subject and she did not see the subject “creating a future” for this young man”. [ 59 ] Dr. Williams, who described herself to the probation officer as having a “PhD. in Ethics”, was similarly troubled about the relationship between the offender and his roommate. She told the probation officer that “she felt that D.H. was “under the control” of the subject and he appeared “under his thumb”. She described the subject as “majorly (sic) controlling and continuing to engage in harmful behaviour”.

She stated that she sees no remorse” – most strange statements for an ethicist. [ 60 ] Of course neither of these pastoral visitors had any substantial opportunity to interview Mr. H. If they had, they would have learned that his ability to communicate in English is quite limited, and that he comes from an extremely troubled background. A letter was filed (Exhibit 5, Tab 5) from Mr. F. Gori, who explained that it was he who had requested that the offender take D.H. in as his roommate. Mr.

Gori described that he had found himself in financial straits and that: “Norm was kind enough to take me in for several months. I introduced Norman to my friend D.H. who was going through a rough situation because he was being abused at home….D.H. had his bank account cleaned out by a local scam artist who also raped him. He was going through a tough time on the streets and finally I suggested to Norm that he take D.H. in”. Mr. Gori’s letter also contains numerous examples of how the offender has assisted him financially and spiritually over the past three years.

He writes: “Norm has been a friend when I needed one most”. [ 61 ] Because of D.H.’s limited English, Mr. Gori assisted him in writing a letter in response to Rev. Dimock and Dr. Williams

comments to the probation officer, which he says “made me very upset”. He writes: I disagree with Reverend Karen Dimock report (sic), the reason I disagree is that, there is a problem in our age difference but he is a better father figure to me than my own father ever was. I enjoy that we do things together. I’ve learned a lot of new things and feel better about facing the future. Norm corrects me occasionally, but I know Norm is always trying to help me. … I knew I was gay when I was in high school….My parents are very homophobic; I only came out to one of my cousins.

Life at home was very difficult because I couldn’t be myself. … I met Norm at a friend’s when I was visiting another friend. I was scared to go home because it was past my curfew time, so Norm drove me home so I wouldn’t be any later….Norm is very supportive, he drives me to the food bank, and drives me to see my mom when my dad is not there, and drove me to see my grandmother in Hamilton couples (sic) of times. I get to see my friends when I want. Norm is very kind to other people, I love living here. I have a safe and private environment.

Norm helps me with Math, teaches me how to cook, and teaches me how to speak proper English”. [ 62 ] It seems to me that the picture presented in this letter entirely consistent with the other letters filed on behalf of the offender, depicting him as helpful, kind and caring. More important, this letter seems to completely contradict the suspicions and concerns raised by the pastoral visitors. [ 63 ] I would not normally have gone into such detail about these unfounded allegations, were it not for the fact that the probation officer was obviously affected by them.

In fairness to her, she did attempt to interview D.H. She reports that “he did not respond to questions with yes or no but limited his answers to ‘Hm-hm’ to indicate agreement. He said that he and the subject were friends only”. Perhaps if she had appreciated D.H.’s background and difficulties with communication in English she might have been less suspicious, and therefore less accepting of Rev. Dimock and Dr. Williams’ allegations. [ 64 ] Nevertheless, it is obvious that the PSR writer was substantially affected by what others told her.

She writes in her Assessment: “Several sources have indicated that the subject always seems to have “someone on the hook” or someone “under his thumb”. This appears evident when his contact with R.P.H. ended in 2011 with his arrest for current charges it seemed to be replaced with his association with D.H.” (my emphasis). [ 65 ] With respect the portion I have highlighted makes no logical sense on its face. If there is some factual basis for this position, it is not stated in the PSR in any coherent manner.

On the record before me, the notion that the offender is somehow Machiavellian enough to immediately “replace” one victim with another amounts to nothing more than pure supposition, and should not be relied upon. [ 66 ] Ms Fromstein argued that because of these various factual and logical deficiencies, I should order that those portions of the PSR be redacted, particularly having regard to the fact that an unredacted copy will be seen and may be acted upon by those who will deal with the offender after sentencing. While I agree that I have the power to do so (see R. v.

L. (B.) March 21, 2000, unreported, per Glass J.) that could - and likely would - have the effect of leaving any reader not understanding the reason for and reasoning behind D.H.’s letter.

I have thus decided to leave the PSR in unredacted form, and hope that the explanation for why I have decided to entirely reject those portions of the PSR is adequately reflected in these reasons. [ 67 ] In sum, on the record before me, I am prepared to act on the basis that there is nothing improper in the relationship between the offender and D.H. – neither on the basis of D.H.’s age, nor on the basis of any power imbalance. (Of course there is a financial aspect to the relationship, but that is no different from any person who takes in a roommate to assist with rent payments).

I see the offender’s relationship with D.H. (and, for that matter, Mr. Gori) as entirely consistent with what others have described about him being a kind and helpful person to others in need. It is indeed a pity that he was not so thoughtful and compassionate during his younger years when he was sexually exploiting and assaulting teenage boys in his care. [ 68 ] At the conclusion of sentencing submissions I asked Mr. Mcleod whether he wished to exercise his right (under s.726 of the Code ) to make a statement to the court.

He said that he wished to “unreservedly apologize” to his victims for his “appalling behaviour to them”. While it is easy to be cynical about the remorse expressed in such a statement, I was left with the impression that it was genuine and not feigned.

Dr. Gojer’s Psychiatric Assessment (Exhibit 2): [ 69 ] In addition to a transcript of the Agreed Statement of Facts and his interview with the offender, Dr. Gojer was able to access psychiatric reports prepared in 1979 and 1980 at CAMH (presumably related to Mr. Mcleod’s past offending). While I have not seen the full reports from that period, Dr. Gojer summarizes them in his current report.

The 1979 report disclosed that “[the offender] does not consider himself to be homosexual or paedophilic and exclaimed ‘I have seen naked boys in the locker room for years in my capacity as a physical education teacher and it hasn’t turned me on’. He stated his behaviour as an attempt to encourage the boys to develop without ‘hang ups’”.

A psychologist who interviewed the offender as part of the 1980 report “concluded that the patient was suffering from an immature personality and sexual confusion”. [ 70 ] Despite the offender’s apparent unwillingness at that time to accept his paedophilic tendencies, the psychiatric reports indicated that “Mr. Mcleod participated well in treatment with confronting himself, overcoming the avoiding behaviour he had adopted and focusing his sexual energies onto adult females and away from young boys”. [ 71 ] The offender told Dr. Gojer that he has not reoffended since his arrest in 1979.

In an attempt to test out the veracity of Mr. Mcleod’s assertions, Dr. Gojer arranged for a Registered Psychologist connected with his clinic to have Mr. Mcleod complete a battery of psychological tests. While in my opinion these could have been more exhaustively done – for example, no MMPI was administered – none of the 18 measures which the offender completed appear to indicate any areas of particular concern. On the two tests that expressly seek to measure deviant sexual attitudes, the psychologist reported that “Mr.

Mcleod does not endorse any tendency to perceive children as sexually attractive and sexually motivated”, and that “Mr. Mcleod’s score does not indicate any sexual compulsive tendencies”. [ 72 ] The psychologist also arranged for the offender to attend 20 sessions of a Sex Offender Group Therapy program (April-June 2014). She reported: “He was open about the nature of his offending and was remorseful about his conduct. He acknowledged that at the time of the offending, he had a sexual interest in young males.

He said that when he was charged [in 1979], he did not see himself as having a sexual interest in young males and had minimized his proclivities. After being sentenced and after having had treatment, he has been able to look back into his past and recognizes that at the time of his offending, he did have a sexual interest in male children i.e. pubescent males. He said that over the years, since his first conviction… he has avoided all unsupervised contact with children, and has related sexually only to adult males.” [ 73 ] To supplement the psychologist’s testing and therapy, Dr.

Gojer administered two well-known actuarial risk assessment instruments for sex offenders. On one measure designed to assess psychopathic tendencies the offender “does not come close to being labelled one”, and on the other measure the score “placed him in the low to moderate risk range”. Dr. Gojer therefore concluded: “I see his risk as low and it is unlikely that he will reoffend”. [ 74 ] It will be recalled that Crown counsel was not initially prepared to rely on Dr. Gojer’s report without having another forensic psychiatrist examine its methodology and conclusions. She consulted with Dr. S.

Woodside of CAMH, who reported that he considered Dr. Gojer’s report to be “fair and balanced”. In light of this, Crown counsel conceded that it would be proper for me to rely on Dr. Gojer’s report. [ 75 ] I am fortified in my reliance on Dr. Gojer’s report in light of other evidence in this case. I note that Rev. Ingram and Ms Jennison’s letters make it clear the offender has been careful to follow the direction of church officials that he should stay well away from children since his release from custody in 1980.

I also note that despite what I understand to have been a fair amount of publicity about this case in the local neighbourhood, and despite the police – entirely properly – inviting victims to come forward, there are no allegations of improper conduct by the offender other than these “historic” offences now under consideration. I thus conclude that the offender is well aware of his deviant tendencies and has taken steps to keep them in check. Above all, there is no evidence of subsequent offending, a most important consideration in any sentencing hearing.

The Relevance of The Offender’s “Previous” Record: [ 76 ] This leads me directly to consider the relevance of the 1980 convictions to this proceeding. In R. v. Stuckless [1997] O.J. No. 6367 Watt J. (as he then was) considered a fact pattern rather similar to the case at bar, in that it was a case in which a homosexual paedophile

child molester was later arrested for offences of the same nature and committed during the same time frame as other offences for whichhe had already been punished. Watt J. considered: “The earlier convictions involve cognate offences committed during the same period as alleged here….The offences with which I amconcerned are part of a series of similar offences for some of which the accused has already been convicted and sentenced. Theseoffences do not constitute crimes committed after the earlier convictions. They were not committed on parole, during probation or whilston judicial interim release.

These offences precede the accused’s first conviction and entitle him to consideration as a first offender forsentencing purposes.” (para. 36; emphasis added) While the Court of Appeal reversed the ultimate decision made by Watt J. as to the quantum of sentence to be imposed on the offender, Ido not read the appellate court’s decision as disagreeing with his approach to this aspect of the issue. It thus seems to me that I shouldadopt the same approach. [77] Having said this, I am firmly of the view that Mr.

Mcleod cannot make any direct claim to any reduction of sentence because of theexistence of the previous sentence imposed for offences committed in the same time frame against different victims. The logic of theManitoba Court of Appeal in the notorious “hockey coach” case of R. v. James 2013 MBCA 14 , [2013] M.J. No. 48, reversingthe decision of a trial judge who did exactly this [2012] M.J. No. 89 (Man. Prov. Ct.), seems to me to be unassailable on this issue.

Nodoubt this is why Ms Fromstein made no effort to press this issue in her submissions. [78] Beyond deeming the offender to be a first offender for sentencing purposes at this hearing, I have come to the conclusion that I canand should give some consideration to the 1980 sentence on two other dimensions. First, the fact that this offender has not recidivatedsince his release from custody is a clear evidence of his rehabilitative potential.

Second, in terms of thinking about the principles ofsentencing to be applied in this case, it seems to me clear – and Crown counsel properly accepted - that there is little need to pay muchattention to the need for individual (sometimes called “special”) deterrence. It is to this broader subject that I now turn. Case Law Submitted by Counsel: (

a) By the Defence [79] Counsel provided a book of sentencing precedents from various levels of court, the earliest of which goes back to 1996, in supportof her submission that Ontario courts have and continue to impose conditional sentences in cases of historic sex offending againstchildren and young teenagers. I have read and reread these cases. With respect, in none of these cases was I able to find any reference tothe important 2000 decision of the Supreme Court of Canada in R. v. R.N.S. [2000] SCC 7.

That case was one of six “test cases” appealedby Crowns in different provinces to provide the Supreme Court with an opportunity to pronounce on the principles to be applied inconsidering whether to impose a conditional sentence. Though two of the other cases also involved sex offences – one of which was“historic”, those cases involved adult victims, while R.N.S. raised the appropriateness of a conditional sentence where the victim was achild. [80] The facts were that the accused had been convicted of sexually assaulting and invitation to sexual touching in relation to his step-granddaughter.

The offences were committed between 1990-94, when the victim was between 5-8 years old and the offender wasbetween 46-50. The offender denied the offences. After a trial, the sentencing hearing took place before the conditional sentencingregime came into effect, so the trial judge did not have that option available.

Despite the offender’s poor health and that the offender’s“actions… were somewhat limited” (numerous fondlings of the child’s vagina, but without any penetration), the trial judge sentencedhim to 9 months incarceration “in light of the clearly abhorrent and reprehensible conduct that had occurred….particularly consideringthat the child was in a trust relationship with [the offender]”. [81] After the conditional sentence regime came into effect in September 1996, R.N.S. initiated an appeal to the British Columbia Courtof Appeal, which allowed his appeal and substituted a conditional sentence of 9 months.

On further appeal by the Crown, an eight judgepanel of the Supreme Court had no difficulty holding that the Court of Appeal had erred. Writing for the court Lamer C.J. held: “…I do not think that a nine-month conditional sentence was a fit sentence in light of the relevant sentencing considerations, includingthe gravity of the offences committed and the high moral blameworthiness of the [offender].

The impugned acts occurred repeatedly overa period of approximately five years….The amount of denunciation provided by a nine-month conditional sentence was clearlyinsufficient in the circumstances to signify society’s abhorrence for the acts the [offender] committed….By imposing a conditionalsentence of only nine months, the Court of Appeal transformed what was already a lenient sentence into an unfit sentence”. (paras. 19-20)

In result, the Court indicated that it would normally have restored the sentence imposed by the trial judge.

However, given theconcession by the Crown that it would not seek any further punishment, the offender having completed serving the sentence substitutedby the Court of Appeal, the court ordered that the sentence be stayed. [82] With all due respect to the judges who decided the post-2000 cases referred to in Ms Fromstein’s case book, while the SupremeCourt’s decision in R.N.S. does not entirely foreclose the possibility of a conditional sentence, to my mind that judgment is entirely clearthat it will be a very rare case indeed where a conditional sentence would be appropriate for a case of child sexual abuse. [83] In this regard Ms Fromstein placed particular reliance on three recent cases where conditional sentences were imposed by Ontarioprovincial court judges.

These first of these is the decision of Rutherford J. in R. v. Palacios 2012 ONCJ 195 , [2012] O.J. No.1535, where the basic facts were that, over a 5-6 year period the offender fondled some seven youthful hockey players whom he coached.The offender, now a diagnosed paedophile, had several previous convictions for the same offences, but had not reoffended for 30 years,and had been continuously under the care and guidance of several mental health professionals, all of whom reported that his likelihood ofreoffending “was low if not minimal”.

Crown counsel conceded the positive steps the offender had taken, but she nevertheless sought acustodial sentence of two years less one day, arguing that such a relatively low sentence would sufficiently reward the offender for theprogress he had made. Rutherford J. accepted defence counsel’s position that this was one of those rare cases where a conditionalsentence was appropriate.

In coming to this conclusion she was particularly affected by the fact that the offender had voluntarilydisclosed other sexual offending both to the mental health professionals who were dealing with him, and also to the mother of one of theboys he had molested (paras. 71-2). [84] The second case where a conditional sentence was recently imposed for sexual offences against children occurred in the decision ofWakefield J. in R. v. Brown, March 21, 2014, unreported.

The facts of Brown’s offences bear some similarity to the case at bar, in thatthe offender was a scoutmaster who took scouts in his troop to a cottage for weekends, where he molested them. Some 30 years hadelapsed since the offences occurred, during which time the offender had “a long history of community involvement creating sportingopportunities for young people and [had] been inducted into the Whitby Sports Hall of Fame”.

While acknowledging that varioussentencing precedents from the Ontario Court of Appeal (described infra) had indicated that only rarely should a conditional sentence beimposed for child sexual abuse, Wakefield J. held that a conditional sentence was appropriate: “The degree of remorse expressed by Mr. Brown, and perhaps more to the point demonstrated by Mr.

Brown, the unblemished andreformative life he has led since the offences, the preservation of the victims from testifying at least once and probably twice had thematter gone to trial after preliminary hearing, the immediate acknowledgment of guilty upon this arrest, and almost immediate upon theprior investigation by the police back in the 1980’s[12], the supportive letters, the psychiatric assessment of low risk to offend, thelengthy and successful compliance with terms of release…[lead me] to find that this is one of those exceptional cases.” (pp.10, 12) [85] In response Ms Iny points out that in both of these cases Crown counsel restricted themselves to seeking sentences of less than twoyears, whereas she seeks a considerably higher sentence for Mr.

Mcleod, given the nature and extent of his offending. Though the viewof the seriousness of a case taken by Crown counsel by no means defines what a judge should do, I agree with Ms Iny that this is a factorI should consider in this case. [86] Ms Iny’s stronger point is that whatever may have been the correctness of these decisions at the time they were pronounced, theyhave been overtaken by the approach to “historic” sexual offences against children enunciated in the recent Court of Appeal decision inR. v. H.S. 2014 ONCA 323 , [2014] O.J. No. 1974.

In that case the offender had entered pleas of guilty to various chargesrelating to having unprotected sexual intercourse with his “desperately fragile” 15 year-old foster child, who gave birth to his child in1978.

She did not complain to the police until 2010; when the offender was contacted, a DNA sample confirmed that he was the father. [87] The offender did not plead guilty in provincial court, so, unlike the case at bar, he could not claim the benefit of an early guiltyplea.[13] Nevertheless, the trial judge accepted the defence position that a conditional sentence was appropriate, despite the Crownhaving sought a custodial sentence “of two to two and one-half years”. [88] On appeal by the Crown, the Court of Appeal held that the sentence was manifestly unfit and imposed a sentence of three years(less credit of one year for the time the offender had spent serving his conditional sentence while the appeal was pending).

In fact, thecourt indicated that, were it not for some factors “unique” to the particular case, “the objectives of general deterrence and denunciation,and the importance of ensuring parity with other sentences in similar circumstances, support a sentence of five years” (para. 56).

[89] Of particular importance to my determination of the appropriate sentence to be imposed on Mr. Mcleod is the Court of Appeal’sreaffirmation of the sentencing principles to be applied in cases of significant time lapse between the offence dates and discovery by theauthorities. In R. v. W.W.M. (2006) (ON CA), 205 C.C.C. (3d) 410 (Ont.

C.A.), a different panel of the Court ofAppeal had adopted as “the leading case on the treatment of time lapse in sentencing” a decision of the Alberta Court of Appeal: “When a period of many years has elapsed between the commission of an offence of sexual assault and its discovery by the authorities,that circumstance dictates review of the degree to which the usual principles of sentencing are applicable in such circumstances. ... The lapse of time does not in any way render inapplicable the principles of general deterrence and denunciation.

The first of theserequires a sentence which will intimidate those other than the offender who might be tempted to follow his example. The second requiresa sentence by the imposition of which the court will reflect society's view of the wrongness of the conduct, and persuade those whomight be confused about what is right and wrong. These two principles may overlap in their effect on the choice of sentence. The need for the sentence to reflect the community's desire to denounce offences of the kind with which we are concerned is notdiminished by the passage of time.

Conversely, if the court were to impose a lenient sentence because of the passage of time, somemembers of the community might regard the sentence as judicial condonation of the conduct in question. That would tend to lessenrespect for the administration of justice. In the circumstances we are considering in these appeals, the lapse of considerable time, and (weassume, for the purpose of discussion) the intervening years of unblemished conduct, do not lessen the relevance of these two principles. ...

The only sentencing principles which may be affected by the lapse of time are those of individual deterrence and rehabilitation. Byindividual deterrence we mean that the sentence should deter the accused from committing a similar offence in the future. Byrehabilitation we mean that the sentence imposed should reflect the hope that somehow, while serving his or her sentence, the accusedwill be rehabilitated and at its end will resume his or her place in society as a useful and law-abiding citizen. These two principlesoverlap.

In the case of a sexual offence against a child, when on occasion the child does not report the offence to the police or any otherauthority until many years after the event, should the sentence be less than what it would have been if the prosecution had occurred notlong after the commission of the offence?

If the accused, during the intervening years, has led an exemplary life in all respects, includingnon-repetition of sexual offences, and upon the matter ultimately being reported to the authorities and during the resulting investigationand prosecution he is remorseful, then the principles of individual deterrence and rehabilitation may arguably, by themselves, not justifya stern sentence of the kind which would have been obligatory many years earlier.

It will be noted, however, that if, despite having ledan exemplary life, the offender lacks remorse, any potential discount must be less than it otherwise would have been. Indeed, in cases ofthis sort, of sexual abuse of children by parents, one might well ask whether one could ever have both remorse and lengthy suppressionof the facts.” (R. v. Spence (1992), 1992 ABCA 352 , 78 C.C.C. (3d) 451) Speaking for the court in H.S. Epstein J.A. again confirmed that “these particular sentencing principles [of denunciation and generaldeterrence] are unaffected by the passage of time” (para. 54).

She went on to say that “while a delay of over 35 years is a relevantconsideration, its mitigating effect is reduced by its lack of relevance to the operative sentencing principles” (para. 55). [90] Ms Fromstein responds to Ms Iny’s argument by citing the post-H.S. decision of R. v. Nussbaum (May 6, 2014, unreported), whereTaylor J. considered the implications of H.S. in a case rather similar to the facts in the case at bar. In that case the offender pleaded guiltyto indecently assaulting and committing gross indecency on six young boys over a ten-year period (1972-1982).

At the time of thecommission of these crimes, the offender was a teacher, choir leader, camp counsellor and volunteer at a school. Though the offender’sbehaviour was brought to the attention of school officials, no complaint was made to the police at that time, and the offender was fired(or allowed to resign).

It was not until one victim finally went to the police in August 2012 that the criminal process was engaged inrelation to these victims; however, the offender had pleaded guilty in the mid-1980s to sexually assaulting two other teenage boys, forwhich he was granted a conditional discharge. [91] Taylor J. considered that “it is a close call…whether the need for general deterrence and to denounce Heshi Nussbaum’s behaviouris so great that this can only be accomplished through an actual jail sentence” (para. 25).

His Honour found “on the unique facts of thiscase” a conditional sentence of two years less a day (followed by probation for three years) was appropriate. Those facts (which may beusefully compared with the case at bar) were found by Taylor J. to be: • The offender’s plea of guilty;

• His public apology to his victims; • No re-victimization through a trial; • The “objective evidence” that he had rehabilitated himself; • Careful monitoring of his behaviour over 25 years by his Rabbi and members of his congregation; • No new victims came forward despite the police having issued a press release; • All the offences ante-dated his finding of guilt in the 1980s: • He was 73 at the time of sentencing. [92] While I agree that there are many similarities between Nussbaum and the case at bar, with great respect to Taylor J. I simplydisagree with his attempt to distinguish H.S.

In addition to the Court’s reaffirmation of the principles to be applied in cases involvingsignificant lapses of time between commission and detection of the offence, it is my view that that decision confirms a series of otherdecisions of the Court of Appeal (discussed infra) to the effect that exemplary penalties must be imposed to denounce those who act outsexually against children.

And when one combines this with the R.N.S. decision of the Supreme Court declining to uphold a conditionalsentence in a breach of trust child sexual assault, it seems to me clear that Taylor J. is wrong in his view of the law. [93] (I also note that, as Ms Iny pointed out, Crown counsel in that case limited the upper range of his submissions to a custodialsentence of two years less one day, rather as Crown counsel had done in the cases of Palacios and Brown). [94] Thus, with all due respect to Ms Fromstein’s well-argued position, and despite the factual similarities between the offender in thecase at bar and Mr.

Nussbaum, I cannot find that this case is so unique that a conditional sentence would appropriate. [95] More importantly, I have come to the firm conclusion that the offending here is so serious and offensive that a penitentiary termmust be imposed; therefore, as noted by the Supreme Court of Canada in R. v. Proulx, the question of a conditional sentence simply doesnot figure. The harder issue, to which I now turn, is the length of that penitentiary term. (

b) By The Crown [96] The core of Crown counsel’s argument in support of a 6-7 year sentence is based on some language in the leading decision of theOntario Court of Appeal in R. v. D.D. (ON CA), [2002] O.J. No. 1061, where Moldaver J.A. wrote for the court that“mid to upper single digit penitentiary terms will, as a general rule, represent the appropriate sentencing range…for adult offenders whogroom innocent young children and sexually abuse them over substantial periods of time” (paras. 31, 29). [97] It needs to be

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