Her Majesty the Queen - v. -, 2012 SKPC 121

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 121 Date: July 30, 2012 Information: 24335371 Location: Moose Jaw, Saskatchewan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Leopold Therrien Appearing: Mr. Rob Parker For the Crown Mr. Jeff Deagle For the Accused SENTENCING DECISION M.T. GORDON , J [ 1 ] Leopold Therrien, an 86 year old Willow Bunch man, pled guilty to two counts of sexual assault. These assaults occurred between 1983 and 1996 when his granddaughters, Leanne Eger and Nicole Eger were children. [ 2 ] Sentencing submissions were heard June 8, 2012, and I reserved my decision until today’s date.

[3] The Crown asks for a period of actual incarceration of eighteen to twenty-four months, to be served in a ProvincialCorrectional Centre. [4] The Crown referred and filed the following cases: R. v. T. (S.G.), 2011 SKCA 4 R. v. G.A., 2003 SKCA 88 R. v. P.P., 2001 SKCA 74 R. v. W. (P.H.L.), 2005 SKCA 156 R. v. L. (A.F.), 2002 SKCA 41 R. v. Chrispen, J.R., 2009 SKCA 63 [5] The Crown highlights the case of R. v. W. (P.H.L.), 2005 SKCA 156, as being the closest to this fact situation and thereforemost helpful.

The Crown submits that in Saskatchewan similar cases have resulted in lengthy periods of incarceration of the offender. The Crown notes the aggravating factors that I found after the sentencing hearing pursuant to s. 742. My decision, 2012 SKPC 49, 2012 SKPC 049, discusses the findings of fact I made after hearing evidence of the two victims and the accused.

I found asaggravating circumstances the following: the assaults were numerous, there was touching and fondling under the victims’ clothing andon one occasion at least, digital penetration. [6] The Crown points to further aggravating circumstances being the position of trust and young age of the victims. The Crownnoted these incidents occurred over a number of years and the degree of personal violation of the victims. [7] On the mitigating side, the Crown acknowledges that Mr. Therrien has no criminal record and is assessed as a low risk to re-offend. His age has to be considered.

The Crown submits the guilty pleas of Mr. Therrien are not to be considered a mitigating factor asthe victims had to testify at a sentencing hearing. [8] In

summary, the Crown submitted that applying the sentencing principles in sections 718, 718.1 and 718.2, denunciation andgeneral deterrence are the most important. In this case there should be little weight given to rehabilitation. [9] The Crown also requested the additional order under

section 109, 490.011 Sex Offender Information Act and

section 161 ofthe Criminal Code. [10] The Defence advised his client agrees with the contents of the Pre-Sentence Report. The Defence acknowledged that theCourt made certain findings of fact as reported in my written decision (R. v. Therrien, 2012 SKPC 49) with respect to the aggravatingcircumstances. The Defence strongly urged the Court to consider a conditional sentence of two years less one day with electronicmonitoring for the first several months. In R. v. Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61, the Defence suggested that the Courtcould craft such a sentence while still applying the sentencing principles in

section 718 to 718.2. [11] In the alternative the Defence submits that after reviewing all of the cases filed by both counsel, a sentence of nine monthsincarceration would be appropriate. [12] The Defence filed three cases, namely: P.D. v. R., 2005 SKCA 60, R. v. H.G., 2003 SKCA 88 and R. v. R.N.S. and TheAttorney General of Ontario, 2000 SCC 7 , [2000] 1 S.C.R. 149. [13] The Defence highlighted the case of R. v. R.N.S. that involved an accused close in age to Mr. Therrien and the abuse of hisstep-grandchild. At the Supreme Court of Canada, the Court stated that a nine month sentence of incarceration would have been

appropriate in the circumstances. However, the accused had completed his conditional sentence and the Crown did not seek any further actual punishment. [ 14 ] At the Court of Appeal, Lambert J.A, proceeded with the correct analysis pursuant to

section 742.1 and determined a conditional sentence order was appropriate. The Court noted in particular, the following: the offender had no criminal record, his health, he suffered social stigma, his self-employed business had suffered, he had mental health difficulties, and that he was a minor risk to re-offend, as justifying a conditional sentence order. [ 15 ] The Defence noted R. v. H.G. , supra, in which the Saskatchewan Court of Appeal overturned a conditional sentence. However, H.G., the offender, was employed in a band and worked late into the evening.

A curfew confining him to his residence except for work purposes had no meaning. [ 16 ] Finally, the Defence argues that the Court must consider the least restrictive sentence that meets the sentencing objectives. Applying a Proulx analysis, the Defence suggests a sentence of two years less one day pursuant to a conditional sentence order with electronic monitoring for the initial portion. He argues that Mr. Therrien has accepted responsibility, notwithstanding the sentencing hearing. He is remorseful. He has been ostracized by his family.

He has sought professional help to try and understand why he would act in this manner. He will continue to live and struggle with this matter until the end of his days. [ 17 ] Both victims were present and read their victim impact statements. These statements were also filed with the Court. [ 18 ] Both victims describe the pain and suffering as a result of the years of sexual abuse and cover-up. Each victim told of her experiences and the harm done from the time the abuse started which continues to the present day.

The victims also describe the reactions of others, including family and outside agencies which heightened their feelings of shame and isolation. Analysis [ 19 ] The Pre-Sentence Report describes an 86 year old man who was born and raised in Willow Bunch, Saskatchewan, the sixth child born of a family of thirteen. The report states he had a close-knit family and suffered no form of abuse. He married in his twenties and has seven children and many grandchildren. His wife of over sixty years has health problems and Mr. Therrien has taken on the household responsibilities. [ 20 ] From the Pre-Sentence Report, Mr.

Therrien was gainfully employed during his working life. He worked for other farmers, ran his own service station, and then worked for the Rural Municipality as a maintenance man until his retirement in 1990. He enjoyed golf and socializing at the local senior’s centre. [ 21 ] He has good health and was not on any medication. [ 22 ] All that changed when these allegations were reported to the police resulting in the current charges and guilty pleas. [ 23 ] The report notes that the relationship with his family, children and grandchildren, became distant.

I heard at the time of the sentencing submissions that his wife is no longer residing in the family home. His general health has deteriorated to the point he is seeing a psychiatrist on a regular basis and has definite suicidal ideations. [ 24 ] He is remorseful and is trying to understand his actions. He does not know where to turn but is agreeable to attending sex offender treatment programming.

[ 25 ] He has been assessed on both the Saskatchewan Provincial Risk Assessment and the SJAJK-99R risk assessment as low risk to re-offend. The home is adequate for electronic monitoring purposes. [ 26 ] The current personal circumstances of Mr. Therrien are sad indeed. A man who worked and raised his family with his wife of 61 years has had his world cave in. He is suffering and thinking seriously of suicide. [ 27 ] However, those considerations are only one part of the big picture when deciding a fit and proper sentence.

Personal considerations must be balanced with others, impersonal, in finding a fit sentence. This does not mean personal considerations are to be given equal weight. In this case, they are one small piece of the pie. [ 28 ] The responsibility for sentencing in this case is quite different. In R. v.

P.C. , 2004 SKCA 54 , Justice Lane speaking for the Court at paragraph ten states as follows: The trial judge was aware serious sexual assaults will attract a three year sentence before the mitigating and aggravating factors are considered… [ 29 ] Sections 718 through 750 of the Criminal Code governs the sentencing of adults in Canada. The most relevant sections are reproduced below for clarity and easy reference.

Section 718 states: 718. 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 acknowledgment of the harm done to victims and to the community.

Section 718.0 states: 718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

Section 718.2 states: 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or

(

v) evidence that the offence was a terrorism offence shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [ 30 ] In this case, denunciation and general deterrence are the most important sentencing principles. As well, there are aggravating factors within

section 718.2. The Court must bear in mind that the sentence must be proportionate to the gravity of the offence and level in degree of responsibility of the accused. As best I can, the sentence must not be “…harsher or more lenient than a sentence imposed on similar offenders for similar offences committed in similar circumstances” ( R. v. Paul , 2007 SKPC 150 ). [ 31 ] I find the following factors to be aggravating: 1. Mr. Therrien is the grandfather of these two victims. He abused a position of trust. The abuse primarily took place at his home or Leanne’s home. 2.

The abuse started when each victim was young and continued for several years. 3. The abuse did not stop until the family became aware of the circumstances. The abuse continued when Leanne was seven to thirteen years old, and Nicole was four to twelve years old. There were no steps made to stop the abuse. 4. Over the years, Mr. Therrien became bolder and took more liberties with the victims. 5. The devastating effect on both victims including emotional and psychological harm. In addition, the destruction of the sibling relationship between the victims, including their brother. 6.

There was pre-meditation. [ 32 ] I find the following to be mitigating factors: 1. Mr. Therrien has no criminal record. 2. Mr. Therrien has been publicly embarrassed and ostracized by his family and his community where he has lived all his life. 3. Mr. Therrien has lost his wife’s companionship and that of many family members. He is alone and broken. 4. Mr. Therrien was a productive member of society and financially supported his spouse and family. [ 33 ] The Defence has suggested that a conditional sentence pursuant to

section 742.1 can be considered by the Court. This is true, to the extent that the sentence will be incarceration, for less than two years and there is no minimum sentence mandated in the Criminal Code . In addition, I am satisfied that the safety of the community would not be endangered by having Mr. Therrien serve his sentence under house arrest. [ 34 ] However, Mr. Therrien’s request for a conditional sentence fails at the final stage of the analysis. Even on a very broad construction of R. v.

Proulx , supra, I have no hesitation in concluding that the imposition of a conditional sentence order is not consistent with the sentencing principles as set out in sections 718 to 718.2 of the Criminal Code . [ 35 ] One of the main arguments for a conditional sentence is the age of the offender and his fragile emotional and mental state. In R. v. S.P., [2004] N.J. No. 182 , Judge Gorman of the Newfoundland Provincial Court stated at paragraph 17: The age and health of an offender are considerations in the imposition of sentence (see R. v. J.N.O., [1993] N.J. No. 9 (C.A.) ).

However, there is no evidence that S.P. suffers from a serious or life threatening illness (see R. v. Andrews, [2004] M.J. No. 158, 2004 MBCA 60 ). An inflexible rule that holds that the elderly are immune from the commission of serious offences or from the imposition of significant

periods of incarceration does not exist. [36] The Pre-Sentence Report dated November 16, 2011, stated that “Leopold reports he has a clean state of health. He states hedoes not take prescription pills for any health purposes”. In addition, “Leopold reports that he has never had substance abuse problems inhis life”. [37] In my view, it is reasonable to conclude that Mr.

Therrien’s current health difficulties relate to the fact that as this matter hasproceeded through Court; the sentencing hearing in February, my decision finding aggravating factors, and now sentencing submissionsin June, are all bringing home to him that this matter will be concluded in Court and he will be sentenced. [38] However, despite his age and the recent medical problems which relate to this sentencing, the need for denunciation anddeterrence requires a period of actual incarceration. This may seem harsh as Mr. Therrien is nearing the end of his life.

Some may arguethere is no purpose in incarcerating such an individual. He is not a threat, and it is unlikely he will have any contact with young familymembers. But, in any historical crime, justice must still be done. The passage of time cannot absolve the offender or minimize thecrime. [39] For an individual that has no criminal record, and has not been to Court before, this indeed is foreign territory over which hehas no control. I acknowledge there are cases where the offender is given a conditional sentence, even in cases of sexual assault by agrandfather on his granddaughters (R. v.

J.A., (NL SC), 158 Nfld. and P.E.I. R. 51). The Court stated at paragraph22: Were it not for the general health of the offender and his spouse, I would unhesitatingly order that his term of imprisonment be served inan institution… The Court characterized the assaults as low to mid-range of severity. [40] In R. v. R.K., 2012 SKPC 17 , 2012 SKPC 017, Judge Klause sentenced R.K., now sixty years of age to an eighteenmonth imprisonment followed by twelve months probation. The accused entered a guilty plea to a count of sexual intercourse with hisstep-daughter, approximately thirty years ago.

Despite the many mitigating factors, the Court found that an actual period ofincarceration was necessary to give effect to the sentencing principles of denunciation and deterrence. [41] While this is not a case of sexual intercourse, the point is made that the passage of time does not result in a different approachor that different sentencing principles should be applied. [42]

Section 722 of the Criminal Code provides a mechanism for victims to describe the harm done to, or loss suffered by, thevictim, arising from the commission of the offence. These statements provide victims of a crime with a voice in the sentencing process. Justice Gorman discusses the role of the victim impact statements at paragraph twenty of R. v. S.P., 62 W.C.B. (2d) 38: Victim impact statements are designed to provide victims of crime with a “voice” in the sentencing process. Such statements areparticularly useful when a child is the victim of the crime.

They can be useful and eloquent reminders of how certain types of offencescan impact on a child’s life. As pointed out by Julian Roberts, such statements are valuable because they “promote the idea that althoughcrimes are committed against the state, and the judicial process involves a bipartite proceeding, crimes are also committed againstindividual citizens.” [43] In R. v.

McDonough (2006), (ON SC), 209 C.C.C. (3d) 547, the Court noted that the harm must have acausal link or connection to the offence. [44] The case law is clear that victim impact statements should not contain criticism of the offender, recommendations as to theseverity of the offence, or statements addressed to the offender. [45] In this case each of the victims filed and read very detailed statements describing the abuse over the years and how it

continues to haunt them. The statements also indicate insight and determination by these strong women to move forward with their ownlives and families. There are portions of the statements, especially Nicole’s, which stray from the appropriate content of victim impactstatements. I have disregarded those portions that risk the appearance of revenge motivation (R. v. Gabriel (1999), (ON SC), 137 C.C.C. (3d) 1). [46] The victims describe their feelings of guilt, shame and isolation, their dread of family gatherings and visits by theirgrandparents.

Nicole Eger recalls in her victim impact statement, this period of time as follows: So I resented Leanne for years that her promise wasn’t fulfilled cause nothing ever changed except we were shamed and felt it was ourfault and I had been so opinionated and defensive in my personal relationships because there was so much hiding from everyone all thetime. [47] Leanne Eger describes how she still has to cope with the effects of the abuse by her grandfather. She put it as follows: In

summary, I lost my childhood and adolescence. After years of enduring depression, anxiety, alcoholism and suicidal thoughts,feelings and plans, I jumped into adulthood in a numb state. There was no gradual growing up. I am furious that I was robbed of myyouth and my innocence. [48] Both victims describe further trauma as a result of the reaction of family members. This continues to affect family relations. There are some individuals who did not “do the right thing” and betrayed these victims. [49] I accept and acknowledge the victims’ anger. However, I cannot sentence Mr.

Therrien for the conduct of others, howeverabhorrent. As an aside, I can only hope that some family members have learned from this experience and will endeavour to speak outshould they ever encounter a similar situation. [50] Mr. Therrien is being sentenced for his conduct with respect to these two grandchildren over many years. [51] I have mentioned his position of trust, and this cannot be overemphasized. This is a breach of trust by a grandfather, whotraditionally is a special person children look up to for love, comfort, fun and acceptance.

Adults in general, including parents andgrandparents, have such a power over children. [52] Therefore, since I have rejected a conditional sentence, the only issue is the length of an actual period of incarceration. [53] In my view, the Crown has been very fair in suggesting a sentence of eighteen months to two years less one day. This isclearly within the range set by appellate courts. [54] Defence counsel has suggested a sentence in the range of nine months. He refers to the case of R. v. P.D., 2005 SKCA 60, asbeing the most similar to the present situation.

P.D. involved a historical sexual assault on family members, four of the victims werestep-daughters and the other victim a grandniece. [55] P.D. entered guilty pleas shortly after the start of the preliminary hearing. P.D. was in a position of trust with respect to the 5young victims. The abuse was frequent and of some duration. P.D. was seventy-one years old at the time of sentencing, had no criminalrecord and was a respected member of his rural community. [56] P.D. appealed, submitting he takes full responsibility for his actions and was participating in a sex offender program.

[57] The Court of Appeal upheld P.D.’s sentence of nine months followed by eighteen months probation. The Court stated thiswas in line with other similar cases such as R. v. M.S. (2003), 2003 SKCA 33 , 232 Sask. R. 28 (C.A.), R. v. M.N. (1989), (SK CA), 76 Sask. R. 299 (C.A.) and R. v. R.N.S., 2000 SCC 7 , [2000] 1 S.C.R. 149. These cases have also beenreferred to by counsel in their submissions. [58] The facts of the present case show Mr. Therrien took more liberties with the victims. His actions got bolder over time.

Therewas touching and fondling under the victims’ clothes and at least one occasion of digital penetration. [59] I see little remorse on the part of Mr. Therrien. He, of course, wishes now this had not occurred. However, he appears tohave little recall or understanding of the situation other than his life has been turned upside down. He is perhaps, and naturally so, afraidof his immediate future. [60] These actions are more than an error in judgment; they are criminal acts. [61] A fit and proper sentence must give considerable weight to denunciation and deterrence.

The general public must see that as asociety we do not condone, cover-up or ignore sexual abuse in families. A clear message must be sent despite an otherwise unremarkablelife of Mr. Therrien. [62] In conclusion, considering the case law, the aggravating and mitigating circumstances and applying the sentencing principlesreferred to previously, I sentence Leopold Therrien to eighteen months incarceration in a Provincial Correctional Centre, concurrent oneach count. [63] Given Mr. Therrien’s age, I am not including a period of probation following his release.

He has seen a psychiatrist and hewill follow-up as he requires. I do not think requiring him to attend counselling or treatment following his release is of any benefit orpracticality, given his age and condition. [64] Pursuant to

section 487.04 of the Criminal Code, a warrant in Form 5.03 is authorized to take bodily samples suitable forforensic DNA analysis from Leopold Therrien. [65] Under

section 109 of the Criminal Code, Leopold Therrien will be subject to a mandatory firearms prohibition for ten years. [66] Pursuant to

section 490.011 to 490.013 of the Criminal Code, there will be an order in Form 52 requiring Leopold Therrien tocomply with the Sex Offender Information Act for a period of twenty years. [67] This is a case where the Crown also applied for an order under

section 161 of the Criminal Code prohibiting the offenderfrom attending public parks, school grounds, playgrounds and community centres. Taking into account Mr. Therrien’s age and hisassessed low risk to re-offend, I decline to make the order. This type of prohibition would not have prevented the current charges. [68] All surcharges are waived. [69] I express my thanks to both counsel for their very professional and competent conduct of a difficult case. Dated at Moose Jaw, Saskatchewan, this 30th day of July, 2012.

____________________________ M.T. Gordon, J