r v. Richard JOHNSTON, 2013 QCCQ 6677

R. c. Johnston Prohibition to publish the name of the victim or any details permitting to identify said victim in virtue of

section 486.4 of the Criminal Code . 2013 QCCQ 6677 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Criminal and Penal Division No: 500-01- 038798-101 DATE: February 27, 2013 ______________________________________________________________________ IN THE PRESENCE OF THE HONOURABLE LOUIS A. LEGAULT, JCQ ______________________________________________________________________ The Queen Prosecutor v. Richard JOHNSTON Accused ______________________________________________________________________ SENTENCE (WRITTEN VERSION) ______________________________________________________________________ [ 1 ] Mr.

Richard Jonhston, the accused, has pleaded guilty to a count of touching for sexual purposes a part of the body of X, a boy under the age of 14 years old. The infraction was committed between April 1, 1999 and May 1, 1999. [ 2 ] The attorneys have admitted that the sexual touching happened in the changing room of a public swimming pool in the West Island. The accused came to this young 13 year-old boy and sexually touched and rapidly rubbed the boy's penis and took the boy's hand to his own penis for a quick touch. The whole incident lasted a few seconds.

OBJECTIVE GRAVITY [ 3 ] As this infraction was pursued summarily, the offence was punishable by a jail sentence of six months. AGGRAVATING AND SUBJECTIVE FACTORS [ 4 ] PRIORS - The accused has no priors in similar matter and his criminal priors date to the eighties and concern gaming and betting infractions. They only have some relevance as his priors point to lax values and appetence for seeking easy gains through risky endeavours (presentence report, page 6). [ 5 ] SEXUAL TOUCHING – The then 52 year-old accused committed the infraction of sexual touching on a 13 year-old boy.

That sexual touching happened on one occasion and lasted a very short time. It was a shocking short encounter. It was not the less serious encounter neither was it the most serious one.The touching and short rubbing of the victim's penis and the holding of the victim's hand for sexual touching of his penis have been admitted. [ 6 ] MINOR A VICTIM – In virtue of

section 718.2 ii. 1) of the Criminal Code , it is an aggravating factor that the victim abused be under the age of 18 years old. [ 7 ] PUBLIC CHANGING ROOM – The initiatives of touching took place in a dressing room or changing room or locker reserved to the male public attending the premises of an outdoor swimming pool in Pointe-Claire. [ 8 ] CONSEQUENCES ON THE VICTIM – The consequences on the victim have not been detailed.

If that growing adolescent could only have been hurt by such a daring offensive and chocking behaviour by an older man in his fifties, it can be presumed that such behaviour can shake and hurt the person of a growing young man of 13 years old as he is in a phase of building up his personality, his identity and his relationship to others. But there is no specific demonstration or allegation of peculiar prejudice that has simply to be presumed. [ 9 ] For the persons close to the victim, there may have been significant concerns for the victim.

It is difficult for the Court, in the absence of more precisions, to speculate more on the consequences of that ill behaviour on the victim's life. The victim should certainly

have been spared from such a distorted course of behaviour. [10] PLEA OF GUILT– The information was sworn on April 29, 2010 and the accused pleaded guilty on February 23, 2012. Thevictim was indeed not compelled to testify against the accused. [11] RISK OF REOFFENDING –The risk that the accused reoffends has been assessed as very light. However, the accused's attitudeshowed a definite reluctance and difficulty to offer a plea of guilt.

The overwhelming shame and the accused's excruciating pain to hisself-esteem, his fear of the ill repute that attaches to the vicious compulsive sudden sexual attack on the person of a young 13 year-oldadolescent, his apprehension of his national and regional reputation being tarnished by this infraction on an adolescent, his determinationnot to involve persons very close to him and his family, all have brought the accused to offer a very reluctant and limited collaboration inthe preparation of the presentence reports and expertise. [12] The accused's narcissistic personality was imaged through the findings of the accused's limited introspection, his egocentriccommitment to relationships, his reduced emphatic emotions as his own interests remain key and namely, his concern for his reputation.The psychosexual assessment of Mr.

Bergeron refers to a narcissistic personality disorder marked with a relationship lacking emphaticemotions, significant egocentrism, overreaching expectations, a feeling of high self-worth and irritation when his own needs are notmet… Many indicators testify to more perverse aspects in the personality indicating a distorted relation to others, in which power andascendancy aspects may be present…(page 8). [13] The psychosexual report, on page 10 as translated, says that the sexual acts… (in reference to such a personality as that of theaccused) are generally performed with very little regard for the feelings of others, the personality profiles being marked by reducedemphatic emotions.

The sexual acting-out represents also a certain power trip in order to feel a narcissistic high. [14] The presentence report prepared by Mr. Marius Magdes points out, on page 6 in a very interesting fashion points out, on page 6,to a man very concerned about showing his best side in order to minimize his problems and avoid the eventual challenge of reflecting onhimself. His personal history tells the tale, after all of a compliant and fulfilling life. However, his multiple convictions points to laxvalues and appetence for seeking easy gains through risky endeavours.

Regarding the way he speaks of himself, he reveals to behedonistic and very centered on his own needs. He likes power and the privileges that the exercise of power gives him. His interpersonalrelationship sometimes testify to a superficial bond and a propensity to objectify others. Both his capacity for introspection and self-criticism appear to us as lacunar. [15] The expert says the following: With a risk of reoffending assessed by the tools to be limited, we think more appropriate to putin place measures prohibiting access to young teenagers… on whom he could develop ascendancy.

The possibility of acting-out in anintrafamily setting, however, is not a preoccupation. (Page 11 of the psychosexual assessment report.) [16] The probation agent Mr. Marius Magdes, in his opinion, affirmed that given weak self-criticism, his lack of interest for others,his deviant sexual interest… his duplicity, his relative social isolation and his taste for risk, the risk of reoffending could not be excludedbut would be rather low. LAW [17] The objectives of the sentence to be rendered are evident.

They have been affirmed by the courts over the years as well as thefactors to take into account. [18] Main case law: Judge Otis of the Quebec Court of Appeal in R. c. L. (J.-J.), (QC CA), [1998] R.J.Q. 971,reminded what served to identify the objective gravity of an infraction committed.

Namely, the nature and gravity of the infraction, itsfrequency, the abuse of confidence and authority, the delinquency of the accused, his deviancy and distress, priors and their temporallink to his priors, the behaviour of the accused after the commission of the infraction including collaboration, involvement in treatment,confession and therapy, compassion and empathy, remorse and regrets. [19] A main factor was according to judge Otis that crimes breaching the values of a society and namely those fostered as essentialand applicable in most societies organised, should have sentences reflect the gravity of such a breach.

As it is an attack on thepersonality of a child, namely here an adolescent, the personality of a child is fragile and in the long term is likely to bring a loss of selfesteem, a distress or suffering. If there is an intolerance that any sane society shall not compromise with, it is that intolerance to sexualabuse on children.[1] [20] The Honourable judge Rothman was clear in La Reine c. Brouillette that the focus of sentencing in child abuse cases of this kindmust be the protection of society.

Children, their parents and the community generally have the right to expect that sentences in thesecases will transmit the firm and unequivocal message that criminal abuse of children will not be tolerated but will, on conviction, involveappropriate punishment.[2] [21] Judge Jean-Louis Beaudoin was clear in saying that attacks on children of this society are profoundly anti human andantisocial.[3] [22] PROPORTIONALITY – The sentence to be pronounced must be proportionate to the gravity of the offence and the degree ofresponsibility of the offender. (Section 718.1 Criminal Code.) ANALYSIS [23] The RECOMMENDATIONS - The prosecutor proposes that the accused serve a firm sentence of 90 days of jail.

Defenceattorney pleads that a suspended sentence alone would very well serve the purposes of the law. [24] Defence alleges that on the same charges with aggravating factors, even a shorter term of jail was considered or other measuressuch as suspended sentence. Defence pleads that at the time of the infraction, sentences would have been more like the ones on

infractions of another nature pursued summarily. Defence alleges that for infractions such as assault, other sentences could be rendered much more lenient when there were no other convictions of the same nature.

But those comparisons do not help to settle the case. [ 25 ] Each case is distinct and if a variety of sentences can be pronounced, one will reflect the gravity of the behaviour of the accused, the seriousness of a child, of an adolescent being the victim, the fact that a community changing room was taken advantage of to commit the infraction, the presumed consequences on a victim of 13 years old including depriving him of the ability to make his choice and imposing his own perversion, the absence of empathy and rehabilitation efforts including therapy or awareness programs. [ 26 ] Sentenced now or before, the Court is not of the opinion that a suspended sentence would not reflect the message of proportionality or of denunciation that has to be pronounced.

On the contrary. An examination of all of the factors do call for a jail sentence.

The fact that this infraction is pursued summarily does not dispense with imposing a sentence that calls for denunciation, deterrence both personal and collective, protection of society and of its the most vulnerable members. [ 27 ] The accused's attitude remains worrisome even if the chances through his narcissistic approach to this infraction speaks of an immense fear of the judicial system and of persons close to him or members of the community getting to know his distorted behavour. [ 28 ] The accused has not been transparent as he offered with great difficulty the full collaboration that should have been his in the preparation of the presentence reports.

His reluctant collaboration speaks of the accused's shortcomings in his willingness to enter therapy or get involved in sensitivity and awareness programs designed to get the accused involved and aware and sensitive to the questions of sexual deviancy on victims of minor age. [ 29 ] Any attack on a vulnerable adolescent is hurting and breaching the confidence the whole community expects that should benefit young adolescents and any children of our communities. It is also an attack on the sexual and emotional development and balance of that young adolescent .

It is a totally unacceptable trespassing of that child's intimacy in a place and circumstances where trust is placed in adults that they will not overact and indulge in any overt sexual deviant behaviour or dare impose it on an adolescen. It is a place where there is opportunity and where the surveillance may be reduced as trust prevails that no one will dare. The accused had to know much more as he was coaching adolescents in collective sports. That is worrisome. [ 30 ] That victim had a sacred right to develop and grow and mature without the deviant behaviour of the accused.

It is also a serious attack on the community as it not only hurts one of the community's children but also the whole community' s need that the children of our society be secured or exempt from such intrusive behaviour.

Sexual touching in these circumstances is shocking. [ 31 ] That sexual infraction committed in a changing room of a public swimming pool represents an attack on the community, a breach of a most important collective understanding that public swimming pools and their changing rooms cannot be tolerated to be places of transgression of the protection that benefits naturally children and adolescents attending those changing rooms. [ 32 ] The accused has immense regrets for himself. He is devastated at the idea he would suffer from any form of personal publicity for his wrongdoing.

He knows how any communication of his wrongdoing would hurt this reputation acquired over a life time and how it took a moment of abandon to his sexual drive and need of sexual gratification in what he hoped was an anonymous set-up to jeopardize his reputation. [ 33 ] His lack of empathy for the victim is stunning. His regret is narcissistic. His guilty plea appears as an acknowledgement of the inevitable. It is nonetheless a positive step from the accused that dispensed this young victim from testifying in court. Also, the accused has however saved valuable judicial resources.

His plea of guilt serves also as a partial relief of the sufferings of the victim and family. [ 34 ] The objective and subjective gravity by far exceeds a somewhat light touch on the buttock as there was the grabbing of the boy's penis, short rubbing and the grabbing of the boy's hand to have him touch his penis as the parties agreed to that account of the circumstances. [ 35 ] Altogether, the importance of the sexual initiative, even short, its intrusion in extent although for a short encounter dared in a public place reserved to changing, the presumed prejudice for a young adolescent so abused through the initiative of an audacious accused in his fifties, the confidence that should attach to the conduct of men who happen to be there, the age of the victim, the accused' s lack of empathy, his lack of regret for the victim but not for himself to be assessed having in mind the time passed by, any therapy or awareness program being useless in view of the accused's attitude even if it would have help reassure the Court and reduce the risk of reoffending. [ 36 ] Also taken in consideration is the plea of guilt, the light risk of reoffending, the need for denunciation, for reprobation, for a clear message that cannot be any lesser nor less adapted to the accused than if he had been sentenced over twelve years ago.

The passage in court has also been a deterrent and should, with the sentence to be rendered, attain the objectives of sentencing that have to be privileged in this case. [ 37 ] Although there was a short reference to the fact that the accused was slightly enebriated, that factor cannot, as qualified and described so generally, constitute a mitigating factor of importance or relevance. It is clear that the accused has also paid a high price of giving away his coaching career and work as a collective sport coach and fine counsellor. His wrongdoing will haunt him for life.

He blew a life effort to build a reputation. One minute did suffice to compromise it. He shall be his most severe judge. These memories of his misbehaviour are his for life. He has compromised the trust of all those who saw the best of him. [ 38 ] A two-month jail sentence should be imposed for that behaviour. A few months jail sentence would convey the message of reprobation and denunciation and need for protection of our society.

It would also have an additional personal deterrence for someone who is unlikely but still at light risk to reoffend. [ 39 ] However, it is proper to transform that straight jail sentence in a conditional sentence with several harsh conditions. It will deter. It will also expose the accused, should he breach the conditions, to serving the balance of the sentence in jail.

[ 40 ] The judicial apparatus and the personal most burdening effect of the whole endeavour and passage in court are likely to contribute to the personal deterrence of the accused and serve the hopes of rehabilitation. [ 41 ] There has to be a clear message affirming that young adolescents should not be interfered in their sexual life through the violence of adults who for their personal sexual drive and gratification will indulge in these attacks.

The psychological, sexual and physical integrity and the security of its vulnerable members and that communities should be protected through the decision of the courts then acting also as guardians of the vulnerable immature and young members of society. SENTENCE TO BE IMPOSED : THEREFORE, THE COURT SENTENCES THE ACCUSED TO A FOUR-MONTH CONDITIONAL SENTENCE. THE ACCUSED SHALL MEET THE SURVEILLANCE OFFICER WITHIN A PERIOD OF 24 HOURS OF THE PRESENT SENTENCE AND THEREAFTER AS OFTEN AS REQUIRED. THE ACCUSED SHALL ADVISE THE SURVEILLANCE OFFICER OF ANY CHANGE IN HIS ADDRESS, PHONE NUMBER, JOB OR NAME.

THE ACCUSED WILL BE SUBMITTED TO A HOUSE ARRAIGNMENT OVER THE NEXT THREE MONTHS AND TO A CURFEW BETWEEN 10:00 PM AND 6:00 AM OVER THE LAST MONTH UNDER RESERVE OF THE FOLLOWING EXCEPTIONS : EXCEPT AS AUTHORIZED IN WRITING BY THE SURVEILLANCE OFFICER; EXCEPT FOR MEDICAL PURPOSES FOR HIM AND IMMEDIATE FAMILY, FOR WHICH THE ACCUSED SHALL PROVIDE PROOF AS SOON AS POSSIBLE TO HIS SURVEILLANCE OFFICER; EXCEPT ON FRIDAY BETWEEN 9:00 AM AND 12:00 NOON TO PROVICDE FOR HIS FEEDING AND FOR ESSENTIAL NEEDS; EXCEPT TO PRACTISE A RELIGIOUS CULT, WITH NOTICE IN ADVANCE TO HIS SURVEILLANCE OFFICER; THE COURT ORDERS THE ACCUSED TO HAVE A TELEPHONE LINE AVAILABLE AT ALL TIMES AND PROHIBITS ANY CALL FORWARDING DEVICE; THE COURT ORDERS THE ACCUSED TO ANSWER PHONE CALLS MADE TO HIS RESIDENCE; PROHIBITION TO HOLD A TELEPHONE CONVERSATION WITH A THIRD PARTY FOR MORE THAN 20 MINUTES; ORDER TO LEAVE FREE ACCESS TO HIS SURVEILLANCE OFFICER OR TO HIS REPRESENTATIVE TO HIS DOMICILE AT ALL TIMES; THE COURT ORDERS THE ACCUSED NOT TO BE IN THE COMPANY OF PERSONS OF MINOR AGE EXCEPT WHEN IN THE COMPANY OF ADULTS AND EXCEPT HIS CHILDREN AND GRANDCHILDREN; INTERDICTIOIN TO COMMUNICATE DIRECTLY OR INDIRECTLY WITH THE VICTIM X OR MEMBERS OF HIS FAMILY.

THE ACCUSED WILL ALSO BE BOUND BY A TWO-YEAR SUSPENDED SENTENCE AT THE USUAL CONDITIONS FROM THE TIME OF THE EXPIRY OF THE CONDITIONAL SENTENCE. THE ACCUSED SHALL KEEP THE PEACE, BE OF GOOD BEHAVIOUR AND BE PRESENT IN COURT WHEN REQUESTED. THE ACCUSED SHALL MEET A PROBATION OFFICER WITHIN 24 HOURS OF THE PRESENT SENTENCE. THE ACCUSED SHALL NOT COMMUNICATE OR ATTEMPT TO COMMUNICATE DIRECTLY OR INDIRECTLY WITH X, THE VICTIM, OR WITH MEMBERS OF HIS FAMILY.

THE COURT ORDERS THAT THE ACCUSED NOT ATTEND A PUBLIC PARK OR PUBLIC SWIMMING AREA WHERE PERSONS UNDER THE AGE OF 16 ARE PRESENT OR CAN REASONABLY BE PRESENT UNLESS HE IS IN THE COMPANY OF HIS CHILDREN OR GRANDCHILDREN OR OF AN ADULT. FURTRHERMORE, IN VIRTUE OF

SECTION 487.051 OF THE CRIMINAL CODE , THE COURT ORDERS THE ACCUSED TO PROVIDE BODILY SUBSTANCES FOR FORENSIC DNA ANALYSIS AS THIS IS A PRIMARY DESIGNAGTED OFFENCE. ORDER TO COMPLY WITH THE SEX OFFENDER INFORMATION REGISTRATION ACT IN VIRTUE OF

SECTION 490.012 FOR A PERIOD OF TEN YEARS. THE WHOLE WITH COSTS AND FINE SURCHARGE PAYABLE WITHIN 4 MONTHS OF THESE PRESENTS. __________________________________ LOUIS A. LEGAULT, JCQ

Me Josianne Laplante Crown Attorney Me Jeffrey BoroDefence Attorney [1] Il est des crimes qui témoignent des valeurs protégées par une co llectivité humaine à un moment déterminé de son histoire etqui, à la faveur de l'évolution des sociétés, deviennent finalement périmés. Il en va différemment des crimes d'ordre sexuel commis surdes enfants en bas âge. Même avant que des lois pénales répressives ne sanctionnent ces délits, la protection des enfants constituait l'unedes valeurs essentielles et pérennisées par la plupart des sociétés organisées.

La fragmentation de la personnalité d'un enfant à l'époqueoù son organisation naissante ne laisse voir qu'une structure défensive très fragile, engendrera - à long terme - la souffrance, la détresse etla perte d'estime de soi. S'il est une intolérance dont une S'il est une intolérance dont une société saine ne doive jamais s'émanciper c'estbien celle qui concerne les abus sexuels commis sur de jeunes enfants (paragraph 20) [3] R. c. H., (QC CA), Judge Jean-Louis Baudouin, also in a more serious infractionR. c. D. (S.), (QC CA), , paragr. 10.