R. v. Z.(S.), 2011 ONCJ 868

Information Nos. 10-1600 10-1641 10-1642 Citation: R. v. Z.(S.) , 2011 ONCJ 868 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. S.Z. REASONS FOR SENTENCE BEFORE THE HONOURABLE JUSTICE S. O’CONNELL on October 28, 2011, at MILTON, Ontario APPEARANCES : A. Tasson Counsel for the Crown T. Graham Counsel for S.Z. ONTARIO COURT OF JUSTICE TABLE OF CONTENTS ENTERED ON PAGE REASONS FOR SENTENCE 1

Transcript Ordered: May 17 th , 2012 Transcript Completed: May 17 th , 2012 Ordering Party Notified: May 18 th , 2012 REASONS FOR SENTENCE O’CONNELL, J . (Orally): 1. Introduction : This is my decision regarding the sentence to be imposed on Mr. S.Z.. The sentencing hearing occurred on September 7 th , of this year and after hearing submissions from both the Crown and the defence, I reserved my decision until today. Mr. Z. has pled guilty to two counts of sexual assault and sexual interference. At the time of the offences there was no mandatory minimum custodial sentence for sexual interference as there is today.

There are two separate informations before the court. The victims of these offences are Mr. Z.’s, Z.’s granddaughters: Ms. S.S. who is currently 15 years of age, and Ms. L.S., who is currently 10 years of age. 2. The Circumstances of the Offence : An agreed statement of facts was filed as an exhibit in the sentencing hearing, which sets out the facts and the circumstances of the offence. The facts are as follows: On May 16 th , 2010, S.S. provided a video statement wherein she stated that she was sexually assaulted by her grandfather between January 1, 2000 and December 25, 2005.

S.S. was between 4 and 10 years old during this time frame. These incidents occurred mostly while visiting her grandparents’ residence located in Eagle Lake, Ontario. There were also a few incidents that occurred at her aunt’s

house in Burlington, Ontario. S.S. stated that her grandfather would touch her vagina under her clothes with his hands, and as the incidents progressed he would insert his fingers into her vagina. S.S. told the officer that this happened numerous times, and she estimated approximately 30 to 50 separate incidents. Most of the incidents occurred in the living room while other family members were in the different rooms within the residence. S.S.’s sister would sometimes be in the room, but S.S. explained that her sister S. did not seem to notice.

The accused would call S.S. over to him and he would invite her to sit on his lap, and he would then touch her with his hand under her shirt, under her underwear, and inside her vagina. These incidents would last between 5 to 10 minutes. S.S. explained that sometimes the accused would drink during these incidents, but there were times when he did it when he was not drinking. In her statement to the police, S.S. explained that at the time, she thought every grandparent did this to their granddaughter, “like a show of love or something”, and she did not understand that it was wrong at the time.

She explained that the accused is the only grandfather she has ever known, as her paternal grandfather died before her birth. S.S. explained that this started when she was five or six years old. S.S. reported one incident to her mother when she was 9 or 10 years old. This sexual assault occurred at her aunt’s residence in Burlington, Ontario. After she disclosed the sexual abuse to her parents, S. and B.S. drove up to the accused’s residence to confront him with the allegations. The matter was not reported to the police at that time. Approximately five years later, Mr.

Z. sexually assaulted L.S., also his granddaughter. On May 14 th , 2010, L.S. provided a video statement to the police. On the weekend of April 24 th and 25 th , 2010, Mr. Z. and his wife were staying with their daughter S. S.-D. and her husband K.D., L.’s mother and stepfather, in their home in Burlington, Ontario. The family was celebrating a birthday. L. was eight years old at the time. Mr. Z. and his wife were staying in the guest bedroom. On the evening of April 24 th , the accused had been drinking alcohol.

He went upstairs to sleep in the guestroom at approximately 8:00 p.m. while the other guests were still downstairs. L. went into the guestroom to get some playing cards. At that point, the accused called L. over to the bed where he was lying down. The accused was saying various statements to L., and L. stated she was trying to get away and she was telling the accused that she had to go downstairs. L. thought she was in the room for a few minutes. She explained that sometimes she was on top of the accused, and sometimes he was on top of her. The accused was hugging her.

The accused put his hand under L.’s clothing and rubbed her vagina with his fingers before bedtime on April 24 th , 2010. At the time this occurred, L.’s parents, grandmother, two sisters and a few other guests were in the residence. On the morning of April 25 th , 2010, around 7:00 a.m., the accused carried L. into the spare bedroom and again rubbed her vagina underneath her underwear with his fingers. The same day, at the dinner table, after the accused and his wife left the afternoon and returned to Haliburton, L. started crying and disclosed the sexual abuse to her parents.

S.S. and L. had never discussed these incidents with each other, however, after S.S. learned that L. had been sexually assaulted by the accused, S.S. disclosed that she had been sexually abused by the accused over approximately five years, in approximately 30 to 50 incidents. When asked by the investigating officer what S.S. would like to see happen with all of this, she explained: “I would like to see my grandpa get help. I am kind of scared to see him again. I’m really nervous to see him again; I’m not sure I ever will, but I want to see my family happy again and I want to see him get some help for sure.” 3.

The Circumstances of the Offender : In looking at the circumstances of the offender, Mr. Z. is 78 years old. He was born in Croatia and raised in wartime Europe amidst

much hunger and hardship. He has been married for 46 years to Ms. S.O.Z.. The couple have three daughters, S., S. and S.. S. is the mother of S.S. and S. is the mother of L.S.. The family emigrated from Peru to Canada in approximately 1984, when Mr. Z. was 51 years old. Mr. Z. was a senior manager of a textile mill in Peru, where he had worked for 25 years when he requested a transfer to Canada. In 1993, the company downsized and Mr. Z. took early retirement at the age of 60. Up until these events, Mr. Z. has had no involvement with the criminal justice system.

He does not have a criminal record and appears to have led a positive life, and works steadily, supporting his family until the age of 60, when he was forced to retire early. Although he worked sporadically after that, he was never able to find steady financially satisfying employment, according to the pre-sentence report filed, which was a positive report. Mr. Z. ultimately had to stop working due to numerous health and medical issues. Mr. Z. has an extensive medical history. According to the medical report of Doctor Norm Bottom, dated May 26 th , 2011, and filed as an exhibit in these proceedings, Mr.

Z. was diagnosed with bladder cancer in 1999 and had malignant melanoma, which was removed in the 1980s. He also has macular degeneration, requiring regular follow-ups and treatments and is legally blind. He suffered a stroke, resulting in high blood pressure, heart monitoring and other complications, and he has suffered from depression for a number of years. According to the pre-sentence report, Mr. Z. expresses remorse for his actions and has demonstrated a willingness to make amends and accept full responsibility for his actions. However, at the same time, while not denying what has been reported happened, Mr.

Z. states that he does not recall all aspects of every incident that occurred. 4. The Positions Taken by the Crown and the Defence : The Crown seeks a custodial sentence of two years, less a day or 24 months, less a day, followed by three years’ probation as follows: Eighteen months for the offences of sexual interference against S.S., and six months less a day for the offences against L.S.. The Crown also seeks: 1 ) the mandatory DNA order, pursuant to

Section 487 of the Code ; 2 ) a weapons prohibition order for 10 years under

Section 109 of the Code ; and 3 ) the registration of Mr. Z.’s name in the national sex offender information registry. The Crown has produced a list of terms it is seeking to be included in the three year probation order. The Crown submits that for these types of offences, low to mid-range penitentiary terms of three to four years are regularly imposed. However, the Crown submits that there are mitigating factors in this case which suggest a custodial sentence of two years less a day, which is a fit and appropriate sentence in the circumstances of this case.

The defence submits that a fit and appropriate sentence in the circumstances of this case is a conditional sentence of 18 months, followed by a three-year period of probation. The defence does not take issue with any of the ancillary orders requested by the Crown or the conditions of probation sought by the Crown. The defence submits that while it is rare and exceptional to impose a conditional sentence in cases of sexual assault against children, in this case, rare and exceptional circumstances exist, and that is the wishes and views of the victims. In this case, the victims, the members of Mr.

Z.’s family, including his granddaughters and his daughters, are requesting that a

conditional sentence be imposed on their father and their grandfather. 5. The Impact of the Victims : In looking at the impact of the victims, S.S. and L., as well as their mothers, Ms. S.C. and Ms. S. S.-D., all filed victim impact statements for my consideration in this sentencing hearing. Ms. S.-D. also testified during the sentencing hearing, and read her statement to the court. Needless to say, Mr. Z.’s sexual assaults on his granddaughters have devastated the victims and the entire family.

S.S., who is now 15, described that although her relationship with her parents and her siblings have grown stronger and more supportive, her relationship with her grandmother has changed because her grandmother has chosen to remain with and support her grandfather. She describes constant anxiety, making it difficult for her to concentrate in school, although her marks are good and she has kept her grades up. She states that she would feel safer knowing that her grandfather would never be allowed to have any personal contact with her.

She states that the offence has caused her to feel unsafe and cautious around any new male she meets, knowing someone so close to her could do so much harm. In her victim impact statement, L., who is now 10 years old, states the following: “My relationships with my mom and, and dad, I feel safe. I feel they listen to me and help me with my nightmares. My relationships with S.S., is closer because we both have been through the same thing and feel the same. I enjoy talking with S.S..

In general, I feel safe because I feel my family has come a lot closer and more protective. ...I am doing very well in school, but I still feel a little uncomfortable around boys and men because I don’t like them too close to me. ...I had a doctor to see me because I had anxiety. My naturopath also helped me a lot. I also went to talk with a therapist because I had bad memories of what happened.” During the course of the Crown submissions, it was also made clear that L. suffered some form of eczema as a physical manifestation of her anxiety.

L. finally states: “I would like the judge to put him in house arrest so he can get help there; not in jail. I also would like the judge to make sure I never see him again.” S.C., S.S.’s mother, wrote the following in her victim impact statement: “Losing my father is the most painful thing that has ever happened to me. Through every stage of my life my father was my hero, my inspiration, my strength. He was a fantastic father growing up: playful, loving, supportive. He was the main breadwinner, supported single-handedly a family of five in a country like Peru where every turn was a challenge.

He brought us to Canada to offer us a better life. I admire so very much the father he was. He molested my daughter S.S.. From one day to the other he was lost from my life forever. I will never be able to see him again or allow myself to love him or miss him, and that hurts deeply and is my weakness. Now I must be one hundred percent supportive of my daughter. Honouring my father now would mean dishonouring my daughter, and she comes first. I feel like I failed my daughter. I am supposed to protect her against harm, but I never imagined that harm was so close to home.

My therapist say there is no way I could have known; it’s not my fault, but how do you tell that to a mother of a hurt child when the hurt was happening right under your nose, and you were too busy visiting your family to notice? Now I have to help her heal, deal with what happened to her, and hopefully lead a normal life some day... My emotional state is very weak. I am hurting every day for my daughters, my mother, my sister and her family, my husband and, yes, myself and my loss. I feel very sad, deeply sad. I miss being able to allow myself to love my dad.

Finally, I would like to enter my wishes on what I would like to see happen. I know it is not part of this process, but I want the chance to voice my wishes. It would make

me feel better to do so. I apologize for breaking the rules, but it is important to me. What do I want to see come out of this? 1) I want my father to be put on house arrest at his home in Haliburton, Ontario. 2) I want mandatory therapy and counselling for him. This is particularly important for myself and S.S.. 3) I want his passport removed. 4) I want compensation for S.S.’s therapy.” S. S.-D., L.’s mother addressed the court at the sentencing hearing and stated the following in open court: “Our family has always been very close.

Through the tribulations of immigrating to Canada and learning a new language, trying to fit in, financial instability and concerns for our future, we drew strength from each other and became even closer. My father, at the head of that strength, was a loveable, supportive, strong man, helping his family with whatever was required so we could have a chance for a good future here. As a mother, this has been the most difficult thing I’ve had to go through in my life. You spend your days trying to ensure your children are safe, having everything they need and that they grow up feeling loved.

After this, everything material is irrelevant. I’ve spent my time teaching my children that family is everything. This vulnerable situation, the lengthy and confusing legal process and uncertainty of outcome have broken me. I see my young daughter learning to deal with her feelings and being taught coping mechanisms, and at the same time being concerned for me and about how I am dealing with things, make me realize through her little eyes that I’ve taught my children the right lessons, but it’s unfair for a child to go through something like this, regardless of who it involves.

So we decided as a family, to report the incident so that we could get her the help she deserves. As a daughter, I feel sad. My father is no longer. He died to me that day, and a large piece of my world died along with it. I feel disappointed, confused, angry, sad that this could even occur. The grieving process still continues through a lot of talking, counselling, family support, faith in God and time. I fail to understand how someone could heal from something like this, but I am told it will happen. So, I keep the faith and march forward one day at a time. It gives me comfort knowing my daughter will be okay.

The past year and a half has been very trying for her, and thus for me. I see her smile again, sleep again, feeling completely comforted and safe with us, and I know she will only get stronger. It’s painful knowing my children won’t have someone to call grandfather through their lives.... From the beginning, this has been a family issue. From the time we reported matters to the police, we were firm about our position of not wanting my father to be charged, nor to be sentenced to serve jail time. He’s an old man.

We believe he’s not a danger to society because of his failing health, his lack of sight, his lack of funds, and location of residency. He’s done. He won’t do this anymore, and we’ve made a promise to our children that we will not see him again. For me, especially as a mother, I don’t want to live the rest of my life with a victim cloud over my head. This is now about healing , not about punishment, and not about revenge. I don’t want to live my life knowing that our decision to report for the purpose of getting our children the help they deserve, had such bad repercussions as sending my father to jail.

This dark cloud would haunt me for the rest of my life, and would affect me and my daughter’s feelings about the courage of coming forward in the first place, even though we reassure her, but it’s a natural constant thought. If we felt in danger or unsafe or unsure, I would be the first to suggest an alternate sentence. I ask the judge to give us a chance and listen to our plea for the following considerations: 1) Our daughters are not to have contact with my father;

2) he is to be sentenced to house arrest; and 3) he is to have mandatory therapy, counselling services, including a medical assessment for dementia and alcohol use; 4) he is to have his passport removed.” The family also filed a joint letter, which was attached to the pre-sentence report, in which they reiterated their position that for all family members it is important to their healing process, the victims, that their father and grandfather not go to jail.

They believe that he is suffering from possible dementia and depression, combined with alcohol abuse in addition to his other medical conditions, and that he requires treatment. The joint letter, which was signed by all members of the family, states the following — or portions of it: “During the past 10 years, S. has suffered a series of health illness, which we believe are closely tied to his mental state and long list of medications and repercussions from them.

These illnesses include: melanoma, prostatitis, macular degeneration, he is legally blind; a stroke resulting in high blood pressure, heart monitoring and complications, and depression. He also has, and still is, undergoing a series of treatments for cancer to the urethra. We don’t find these excuses, but support towards the realization that he is mentally ill and requires deeper medical examination and counselling. Our mother has expressed that she is willing to support with his care and assurance of medical treatments, and her wishes should be awarded and respected.

Our father resides with our mother in the small town of Eagle Lake, close to Haliburton. This town is a three-hour drive for us, and with no other children, schools and parks in the vicinity. Because of his legal blindness, he is not able to drive; his licence was suspended in 2003, and he is not within walking distance to anything. He is not a danger to society and we have committed to not visiting him. The effects on our mother: our mother S.O.Z. depends upon a small handmade signing business, which she runs out of her home. She picks up the orders by car and delivers them herself.

This is the only means of income she has, the source of her livelihood, [in addition to old-age security and Canada pension]. Should S. be sentenced to jail, she would not survive this. She is a kind, giving and gentle woman that deserves the world, and not having her grandchildren to visit her through her senior years, is a very strong punishment already. Our family is going through the grieving process through a series of events that have affected all of our futures.

But through the opportunity of being able to acquire professional counselling, we were hoping that this difficult process will bring us healing, not more punishment.” That is the input from the victims. I now turn to the principles of sentencing that I must consider in determining an appropriate and just sentence for Mr. Z.. 6. The Purpose and Principles of Sentencing : The Criminal Code sets out the following purposes and principles of sentencing.

Section 718 of the Criminal Code provides that: “The fundamental purpose of sentencing is to contribute along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

a) to denounce unlawful conduct;

b) to deter the offender and other persons from committing offences;

c) to separate offenders from society, where necessary;

d) to assist in rehabilitating offenders;

e) to provide reparations for harm done to victims or to the community; and

f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community.”

Section 718.1 provides that: “When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall giveprimary consideration to the objectives of denunciation and deterrence of such conduct.”

Section 718.1 sets out that the fundamental principle of sentencing is that: “A sentence must be proportionate to the gravity of the offence and the degree of the responsibility of the offender.”

Section 718.2 also provides that when imposing a sentence a court shall take into consideration the following principles: A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence orthe offender, and without limiting that principal: evidence that the offender, in committing the offence, abused a person under the age of18 years, and evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, areaggravating circumstances.

The Criminal Code also provides that a sentence should be similar to sentences imposed on similar offenders for similar offencescommitted in similar circumstances.

Section 718.2 of the Criminal Code also provides that an offender should not be deprived of liberty, if less restrictive sanctions may beappropriate in the circumstances, and that all available sanctions other than imprisonment that are reasonable in the circumstances,should be considered for all offenders. In considering a conditional sentence, which has been proposed by the defence, I must be guided by

Section 742.1 of the Code, whichaddresses conditional sentences. That sections of the Code provides that if a person is convicted of an offence and the court imposes asentence of imprisonment of less than two years, and is satisfied that the service of the sentence in the community would not endangerthe safety of the community and would be consistent with the fundamental purposes and principles of sentencing set out in the

Section of718 to 718.2 that I have just read, the court may for the purpose of supervising the offender’s behaviour in the community, order that theoffender serve the sentence in the community, subject to the offender’s compliance with the conditions imposed under

Section 742.3(1)of the Criminal Code. In R. v. Wells, 2000 SCC 10 , [2000] S.C.J. No.11, the Supreme Court of Canada set out the approach to determine whether aconditional sentence is appropriate. Justice Lamer in Proulx held that a purposive

interpretation of

Section 742.1 required the sentencingjudge to proceed in stages in determining the appropriateness of a conditional sentence. At the preliminary stage, the judge simply has toexclude two possibilities: (

a) probationary measures; and (

b) a penitentiary term. The duration and venue of the sentence are not determined at this preliminary stage. In addition, the judge isrequired to consider the fundamental purposes and principles of sentencing that are set out in

Section 718 to 718.2, only to the extentnecessary to narrow the range of sentence for the offender. If, at this point, either a penitentiary or a suspended sentence is appropriate,then a conditional sentence should not be imposed. In the circumstances of this case, there is no minimum sentence for the offences at the time the offences occurred. Further, the Crown isnot seeking a penitentiary term, but rather a custodial sentence of two years less a day, given the circumstances of this case. Therefore, aconditional sentence can be considered.

However, in considering the conditional sentence and whether it is appropriate, I mustdetermine the mitigating and aggravating factors that may reduce or increase a sentence in the circumstances of this case. 7. The Aggravating Factors: In first looking at the aggravating factors:

1) There are two victims who were both very young children at the time of these offences. Both children were under the age of 10 years old when these offences occurred. 2) Mr. Z. was their grandfather and in a position of trust and authority over both children.

The breach of trust in these circumstances was egregious and appalling. 3) The sexual acts were repetitive, not isolated, and in the case of S.S., there were approximately 30 to 50 incidents over a period of approximately five years. 4 ) The sexual acts were intrusive, involving touching the children’s genital area under their clothes and involved digital penetration. 5 ) Mr. Z.’s offences have not only had a devastating impact on S.S. and L., he has destroyed or broken a family.

The children no longer see their grandmother; their daughters no longer see their father, as well obviously, as the granddaughters, and they no longer see their mother. “The family is broken”, to use the words of one of the daughters. 8. The Mitigating Factors : In looking at the mitigating factors: 1) Mr. Z. has no criminal record. He is 78 years old, and until these events occurred, his daughters described him as an exemplary father. 2) Mr. Z. pled guilty to these offences and has accepted full responsibility. He is also very remorseful.

A guilty plea is a significant mitigating factor because it spares both victims the anxiety and the trauma of testifying. 3) Mr. Z. has some serious health problems. He is legally blind; he has deteriorating hearing and a serious heart condition, and recovering from cancer. There is some suggestion from the daughters that he may be suffering from dementia and that coupled with the alcohol abuse and depression, may have been a factor in these offences. 4) Given Mr. Z.’s medical condition he cannot drive and is virtually housebound, being cared for by his wife. It is not disputed that Mr.

Z. is a very low risk to re-offend, and the principle of specific deterrence against this specific offender is not an issue in this case. However, I am mindful that even when specific deterrence is absent, in cases involving the sexual abuse of children by adults, the principle of general deterrence must still be given primary consideration. 5) Finally, in my view, the most compelling mitigating circumstance in this case is the position taken by the victims and the family. The victims and family members do not want their father and grandfather to go to jail.

For them, to sentence their father and grandfather to a strict form of house arrest, where he will get treatment, will help them in their healing process and help them move forward with their lives. As they put it in the joint letter filed, “putting their grandfather in jail will harm them and punish them.” The rehabilitation the victims are talking about here is more directed at themselves and how they can move forward. Although they fully acknowledge the harm done to them by Mr. Z.’s actions, in their statements to this court they have made it clear that they will suffer more harm if Mr. Z. goes to jail.

Section 722 of the Criminal Code provides that for the purpose of determining the sentence to be imposed on an offender or whether the offender should be discharged in respect of any offence, the court shall consider any statement that may have been prepared in accordance with this provision of a victim of the offence describing the harm done to, or the loss suffered by, the victim or victims arising from the commission of the offence.

Justice Hill in the decision of R. v.

Gabriel, (ON SC), [1999] O.J. 2579 states at paragraph 21 of his decision that,“Victim impact statements contribute significantly to a just sentencing process.” In going through the purposes of a victim impactstatement in that decision, Justice Hill explains that the objectives of a victim impact statement is to provide crime impact evidence toinform judicial determination of crime seriousness relevant to the principles of sentencing; to provide evidence regarding the victim’sloss; to provide the offender with an account of the consequences of his conduct; to enhance the reputation of the administration ofjustice, and finally, to achieve a measure of balance in understanding the consequences of the crime between the offender and the victim.

However, Justice Hill also states at paragraph 33 of the decision in R. v. Gabriel, and I am very mindful of this principle, that: “In victim impact statements recommendations as to penalty must be avoided, absent exceptionalcircumstances, that is, a court-authorized request, an aboriginal sentencing circle, or an aspect of a prosecutorial submission that thevictims seek leniency for the offender which might not otherwise reasonably be expected in the circumstances.” 9. The Relevant Authorities: I turn now to the relevant authorities.

Both the Crown and the defence filed briefs of authorities which were extremely helpful. The lawis clear that in cases involving the sexual touching or assault of children by adults, particularly where the adult is in a position of trust,custodial sentences are regularly imposed, and conditional sentences are rare and exceptional. In R. v. D.D., (ONCA), [2002] O.J.

No.1061, Justice Moldaver of the Ontario Court of Appeal at that time, states the following at paragraph 44 of thatdecision: “As a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on aregular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms.” Justice Moldaver also said at paragraph 33 of the same decision: “I wish to emphasize that the ranges which I have identified are not meant to be fixed and inflexible.

On thecontrary, sentencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases.” In R. v. Arbuthnot, , a decision of Justice O’Neill of the Ontario Superior Court of Justice, Justice O’Neill consideredwhether to impose a conditional sentence in a case involving the sexual abuse of two victims on two separate occasions.

At paragraph 16of that decision, Justice O’Neill reiterated: “The Ontario Court of Appeal, in numerous decisions, has repeatedly stressed both the serious nature of sexual abuse against childrenand the importance of sentencing sexual offenders with the principles of denunciation and deterrence in mind....

We have frequently stated that a conditional sentence should rarely be imposed in cases involving sexualtouching of children by adults, particularly where the sexual violation is of a vulnerable victim by a person in a position of trust.” Justice O’Neill then goes on to ask the question: “Is this, therefore, one of those rare or exceptional cases where the principles of general deterrence and denunciation can be met throughthe imposition of a conditional sentence order?” In the facts of that case, given the age of the accused and the nature of the sexual offences and the conditions that were met in order toimpose a conditional sentence, Justice O’Neill determined that it was one of those rare and exceptional cases, and imposed a conditionalsentence.

The facts in the case before me are different, in that there was a repeated series of sexual assaults over a lengthy period of time, whichwas not the case in R. v. Arbuthnot. In considering the circumstances of our case, I turn to a decision of R. v. A.G., [1983] O.J. No. 793 of the Ontario Court of Appeal. Inthat case, the Court of Appeal considered a Crown appeal against the sentence imposed on a father who had sexually abused his daughter

over a lengthy time period. The trial judge in that case did not impose a custodial sentence, but instead a period of probation for three years with special conditions. In reviewing the trial judge’s decision not to impose a custodial sentence in the circumstances of that case, the Court of Appeal stated the following at paragraph 3: “The learned and experienced trial judge was mindful that, ordinarily, the gravity of the offence requires the imposition of a custodial sentence to reflect society’s abhorrence of this offence.

He considered, however, that he was dealing with “an incredibly special kind of case” which justified “a quite out of the ordinary disposition”.” In that case “The victim and her sister, to whom the respondent also made sexual advances, not culminating in intercourse, do not appear, so far as can be ascertained, to have suffered long-term psychological damage, have made a good adjustment and are doing very well in school and most importantly the respondent’s wife, the victim and the younger daughter do not want the respondent imprisoned.” [par.4].

The Court of Appeal went on to say at paragraph 5: “The evidence at the trial and the further material received on the appeal indicates that serious psychological damage to the victim will probably result if a custodial sentence is imposed. In these circumstances, the factor of general deterrence must be balanced against the other aims of sentencing.” I am mindful that this is a dated decision and was written in 1983, before the more recent appellate authority regarding custodial sentences that should be imposed in cases of sexual offences involving young children.

However, in carefully considering all of the case law provided by counsel and in particular the appellate authority provided, I conclude that the case before me is one of those rare and exceptional cases where the principles of general deterrence and denunciation can be met through the imposition of a conditional sentencing order for the following reasons: 1) The offences are such that they are not punishable by a minimum term of imprisonment and therefore the criteria for a conditional sentence has been met. 2) The court must impose a term of imprisonment of less than two years, and having regard to the circumstances of this case, as well as both the submissions of the Crown and the defence, a term of imprisonment of less than two years is appropriate in the circumstances of this case. 3) The safety of the community would not be endangered by the offender serving the sentence in the community, as both the Crown and the defence and this court agrees that Mr.

Z. is at low risk to re-offend given his age and present medical conditions. 4) A conditional sentence would be consistent with the fundamental purposes and principles of sentencing set out in

Section 718 and 718.2 of the Criminal Code ; and specifically, in this case, a conditional sentence would address the very exceptional and rare circumstances of the victims of these crimes who have all very strongly indicated, and the evidence at the hearing amply demonstrates, would suffer psychological damage and further harm if a custodial sentence is imposed. 10. Final Decision : On the two convictions for the offences, Mr.

Z., you will be sentenced to a period of incarceration of two years less a day, to be served in the community, subject to the following conditions: 1) You will keep the peace and be of good behaviour. 2) You will appear before the court when required to do so by the court.

3) You will report to a supervisor within two working days after the making of this conditional sentence order, and thereafter when required by the supervisor and in the manner directed by the supervisor, be under the supervision of the conditional supervisor. 4) You will remain within the jurisdiction of the court, unless written permission to go outside that jurisdiction is obtained from the court or your supervisor; and you will notify the court or your supervisor in advance of any change of name or address, and promptly notify the court or your supervisor of any change of employment, although not applicable in this case.

In addition to those statutory and mandatory conditions, I order the following additional conditions: 1) You shall remain in your residence at all times except: (

a) to attend medical appointments or obtain emergency care for yourself or your spouse. (

b) to attend counselling or treatment and to actively participate in that counselling or treatment, as directed by your conditional supervisor and by Doctor Bottom, your family doctor or his designate. (

c) to shop for the necessities of life from 1:00 p.m. to 4:00 p.m. each Wednesday. In addition to that house arrest: 1) You are to abstain from the consumption of alcohol or other intoxicating substances and the consumption of drugs, except in accordance with a medical prescription. 2) You are also prohibited from having any contact directly or indirectly with L.S. and S.S. S.. 3) You are further prohibited from being in the presence of any persons under the age of 16, except while directly supervised by that person’s parent. The sentences that I have imposed for each offence are to run concurrently.

At the conclusion of your conditional sentence, you shall be placed on probation for a period of three years.

Subject to the usual statutory conditions which I have read for the conditional sentence order, there will also be the following conditions: 1) You are to report as directed by your probation officer. 2) You are to reside where directed by your probation officer. 3) You are to attend and actively participate in treatment, as directed by Doctor Bottom or his designate, and your probation office. 4) You are to attend and actively participate in any counselling or rehabilitative programs as directed by your probation officer. 5) You are to sign all necessary consents and releases to enable your probation officer to monitor your compliance with, and progress in, all assessments, counselling and rehabilitative programs.

6 ) You are abstain absolutely from the purchase, possession and consumption of alcohol. 7 ) You are not to possess, ingest, inject any drug, controlled substance or precursor as defined by federal law, except in accordance with a medical prescription. 8 ) You are to abstain from contacting, associating and/or communicating directly or indirectly with L.S. and S.S. S. 9 ) You shall not attend within 500 metres of any known residence, place of employment, school, place of worship or place of recreation of L.S. and S.S.

S.. 10 ) You are to abstain from owning, possessing or carrying any weapons as defined by the Criminal Code . 11 ) You are to make restitution in the amount of $1,640 to S.C. for the counselling and therapy that she has had to pay for. There will also be the usual ancillary orders: 1) There will be a DNA order. You shall provide your DNA sample forthwith, pursuant to the Criminal Code . 2) There will be a

Section 109 order, which pursuant to that

section you are prohibited from possessing any weapons as defined by that section, for a period of 10 years. 3) Your name will be placed on the Federal Sexual Offence Registry pursuant to the Sexual Offenders Information Registration Act , and that will be for life. 4) You are prohibited from being in the presence of any person under the age of 16, except while directly supervised by that person’s parent. Do you understand the terms of the conditional sentence and the probation order? MR. GRAHAM: Your Honour, if, if I can seek your indulgence, I will review all those terms and conditions with him...

THE COURT: Yes. MR. GRAHAM: ...after court, given his medical issues. THE COURT: Yes. MR. GRAHAM: I would certainly undertake to do so. THE COURT: Thank you. MR. GRAHAM: The only request, that perhaps he can have four months to pay the particular restitution that.... THE COURT: That’s been ordered? MR. GRAHAM: Yes. THE COURT: Yes, four months. MS. TASSON: Your Honour, just that last term that you imposed as part of the probation order, I, I didn’t catch whether that was also a term on the conditional sentence. THE COURT: Yes, it was. The prohibition from being in the present of any person under the age of 16?

MS. TASSON: Yes. THE COURT: I also included that as a term of the conditional sentence. MR. TASSON: And just the 161 order, I didn’t hear that, but Your Honour probably said it. THE COURT: The 161 order I did not say, but there will also be a 161 order. MR. GRAHAM: Thank you, okay. THE COURT: Yes. MS. TASSON: And again, I’ll ask that that be made for life as well. THE COURT: Yes. MS. TASSON: Thank you. MR. GRAHAM: That’s on consent, Your Honour, so.... THE COURT: It is? Thank you, yes, and there will be a

Section 161 order. I wish to thank counsel for their excellent submissions in the sentencing hearing and the assistance with the relevant authorities. And I also thank the victims and the family for participating in the sentencing hearing. MR. GRAHAM: Thank you, Your Honour. MS. TASSON: And there’s, I believe that there’s another information; that should be withdrawn. THE COURT: That will be withdrawn, thank you. CLERK REGISTRAR: And, Madam Crown, if you could just provide me with the information for the recipient restitution, thank you. S.Z.: Thank you, Your Honour. MR.

GRAHAM: Oh, I forgot to — my apologies — the DNA, probably need a date for that. CLERK REGISTRAR: Thank you. THE COURT: Yes, we’ll.... MR. GRAHAM: I’m not sure whether Madam Clerk will tell us that now or.... THE COURT: Yes, thank you. I’ll include that. Madam Clerk has just pointed out that the other exception of house arrest will be permitting Mr. Z. to attend for his DNA appointment. MR. GRAHAM: Thank you. MS. TASSON: Yes. THE COURT: Thank you. CLERK REGISTRAR: Mr. Graham, normally the DNA appointments are two weeks, and it’s at the Halton Region facility. Is your client able to attend in two weeks? MR.

GRAHAM: If I just check perhaps with Mrs. Z., just to make sure transportation can be done for that purpose. Moment’s indulgence, Your Honour. MS. TASSON: Thank you, Your Honour. If I can be excused, thank you. THE COURT: Thank you. MR. GRAHAM: I’m just trying to see an alternative; moment’s indulgence, Your Honour. THE COURT: Yes. MR. GRAHAM: That’s fine, Your Honour, two weeks. If Madam Clerk can have a date? CLERK REGISTRAR: Thank you. That’s on a Thursday, November the 10 th . MR. GRAHAM: That’s fine. And what time? CLERK REGISTRAR: Ten-thirty. MR. GRAHAM: That should be fine.

CLERK REGISTRAR: Or do they need a bit more time? We can do it later in the day if you prefer.

MR. GRAHAM: Perhaps later in the day given the distance they’re travelling. CLERK REGISTRAR: Like? MR. GRAHAM: One o’clock. CLERK REGISTRAR: One o’clock. MR. GRAHAM: That would be easier, I would think. CLERK REGISTRAR: Thank you. MR. GRAHAM: Thank you very much, Your Honour; I thank Madam Clerk. THE COURT: Thank you. ...PROCEEDINGS CONCLUDED FORM 2 Certificate of Transcript Evidence Act , Subsection 5(2) I, _________ Nicole Fyffe ____________________ certify that this document is a true and accurate transcription of the recording of ___ R. v. Z., S. __ in the Ontario Court of Justice held at _ 491 Steeles Avenue East, MILTON, Ontario __ taken from Recording(

s) No. __ 1211-16-20111028-092702-6 _ which has been certified in Form 1. May 17 th , 2012 Nicole Fyffe _________________________ __________________________________ (Date) (Signature of authorized person)