R. v. Marin, 2011 ONCJ 481

Citation: R. v. Marin , 2011 ONCJ 481 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — LEON MARIN Before Justice H. Borenstein Heard on March 24 and May 16, 2011 Reasons for Judgment released on August 10, 2011 Mr. S. Heeney ............................................................................................................ for the Crown Mr. K. McAllum ....................................................................................................... for Leon Marin BORENSTEIN J.: [ 1 ] Leon Marin has plead guilty to one count of breaching a

section 161 Order by being at a public pool where young people were present or could be expected to be present. The Crown has proceeded by indictment. [ 2 ] In January 2010, Justice Gage found Mr. Marin guilty of possession of child pornography and voyeurism. I understand that the voyeurism charge related to videotaping adults surreptitiously. [ 3 ] He was sentenced to the equivalent of 16 months in jail. He had an unrelated criminal record. He was released from custody in May 2010, four months before he committed this offence. [ 4 ] Mr.

Marin was also placed on three years’ probation with terms that prohibited him from having any contact with anyone under 18 unless it was his son or stepson with written permission from the child’s legal guardian. A five-year s. 161 Order was also made at that time prohibiting Mr.

Marin from, among other things, attending a public park, swimming pool, recreation centre, or other similar places where persons under 14 are or can reasonably be expected to be present unless he is in the company of an adult family member and for the direct purpose of participating in educational or recreational activities with his son or stepson. That is the Order he has plead guilty to breaching. He pled guilty before a trial date was set. [ 5 ] The circumstances of the breach are the following. [ 6 ] Mr. Marin was going out with a woman who had a 10-year-old son. In mid-August, Mr.

Marin asked his probation officer if he could have contact with that child. His probation officer told him that he could not unless he got a variance of Justice Gage’s orders. He did not; yet, on September 4 Mr. Marin went to a public pool with his girlfriend and her 10-year-old son. As a result of an argument they were having, the lifeguard called the police. The police arrived and they saw Mr. Marin in the change-room with the 10- year-old. Other boys were present in the change room and, as would be expected, they were in various stages of undress. [ 7 ] Mr.

Marin denies having an argument and states that he did nothing other than go to the pool with his girlfriend and her son – although he knew he was in breach of the Orderof Justice Gage. The Crown is content with those qualifications. [ 8 ] Mr. Marin was arrested and spent 12 days in jail before he was released on a strict bail – where he was on house arrest for five months until the Crown consented to a loosening of the terms of bail so that Mr. Marin could work. [ 9 ] Mr. Marin is 45 years old, he is divorced and has a 15-year-old son. He finished grade 11 and has worked doing general labour.

When his bail was relaxed, he began driving a truck for his father, who works doing renovations. His father has been present in court with Mr. Marin. [ 10 ] Various psychological reports were prepared in relation to the case before Justice Gage, including a 2009 report by the psychologist Dr. Gojer. [ 11 ] In addition, there have been updates to those reports which have been made exhibits on this sentencing. [ 12 ] Mr. Marin attended group counselling in 2009 with Dr. Gojer and attended a further 16 week sex offender counselling

program in 2010 with Dr. Pollock. [ 13 ] Dr. Gojer prepared an update to his 2009 report on March 20, 2011. The updated report details Mr. Marin’s view of this offence as well as his history. It refer to the fact that Mr. Marin was in group counselling following his earlier conviction before Justice Gage and how, on this occasion, Mr. Marin disregarded all that he learned in counselling and took a chance by going to the pool that day with his then girlfriend and her child. His girlfriend did not know about the 161 Order or the probation terms although she knew about the previous charges.

They have since broken up. [ 14 ] Mr. Marin indicates that he would like to return to counselling. Dr. Gojer lists a number of conditions he thinks would be helpful to Mr. Marin in relation to his future. [ 15 ] It is Dr. Gojer’s opinion that Mr. Marin is a voyeur and has an interest in both adult and pubescent girls. He presents a moderate risk to re-offend. Dr. Gojer recommends that Mr. Marin continue with probation and writes that he can be referred for counselling and phallometric testing. Dr. Gojer is of the view that Mr.

Marin should be ordered to have no contact with children under 18 and should not have access to places where children congregate. Further, he should not be dating woman with children under 18. [ 16 ] Dr. Gojer referred Mr. Marin to Dr. Monik Kalia, a forensic and Clinical psychologist who saw Mr. Marin on three individual counselling sessions. They worked on relapse prevention and issues related to the cycle of offending. Dr. Kalia reviewed the various reports prepared by Dr. Gojer. [ 17 ] Dr. Kalia writes that Mr. Marin has shown a strong propensity for insight and critical self reflection. Dr.

Kalia states that Mr. Marin expressed a desire to continue his counselling. [ 18 ] The Crown submits a 9-12 month jail sentence is appropriate in this case and would address the principles of deterrence and denunciation. The Crown emphasizes that

section 161 Orders are about managing risk and that breaches of these orders should focus on risk. A particularly aggravating feature is that Mr. Marin went into the change room. The Crown notes that Mr. Marin is still bound by two more years of probation and 3 ½ years more on the s. 161 Order. [ 19 ] The Defence submits that probation along the terms suggested by Dr. Gojer, namely, keeping Mr. Marin away from young people and requiring that he continue counselling, would best protect the public.

However, the defence also submits that, while probation would best protect the public, a 4-6 month jail sentence in addition to probation would adequately address the other principles of sentencing. [ 20 ] The defence points out that, while this was a flagrant breach of a serious order, no further offences were committed. Mr. Marin agreed to accompany his girlfriend and her child to the pool. Nothing more. Yes, that was a breach but that was the context in which this offence occurred. Further, the effects of that decision have been amply been brought home to Mr. Marin by his time in custody and house arrest.

For those reasons, a further 4-6 months in jail followed by probation would be a sufficient sentence and would appropriately address the principles of sentencing in this case. [ 21 ] Having reviewed the facts of this case and the positions of both Crown and defence, let me turn now to my ruling. [ 22 ] Breaches of court orders, like any other offences, can occur in a multitude of ways. [ 23 ] The authority of the Court is potentially undermined if Courts do not treat breaches of their orders seriously. This is particularly so in cases such as LTO or

section 161 orders where the Court has determined that an accused represents a risk and that Order is meant to lessen the risk to others. [ 24 ] And in this case, the Order was meant to lessen the risk that Mr. Marin may represent to children. It was a wilful breach. He sought permission to have contact with the 10 year and was told he would have to vary the Order yet proceeded nonetheless. [ 25 ] On the other hand, he has pled guilty. He is remorseful. He has taken and returned to counselling and will continue to do so. His attraction is to girls, not boys.

His breach, while flagrant, did not relate to the group that he is attracted to and therefore the risk was lessened. [ 26 ] All of those factors must be weighed in the balance. [ 27 ] In my view, a six-month sentence followed by probation adequately addresses the principles of sentencing in this case. It is a significant sentence for this breach and takes into account the aggravating and mitigating factors. It should be abundantly clear to Mr.

Marin at this point that any breaches of the Orders he is subjected to will be treated seriously and will likely attract a period of custody. [ 28 ] Further, I am prepared to credit Mr. Marin with the equivalent of one month pre-trial custody in light of the 12 days of pre-trial and five months of house arrest. [ 29 ] Accordingly, he will be sentenced to another five months in custody followed by two years of probation [ 30 ] He will be subject to the statutory terms of probation.

In addition, he will be orderd to the following terms of probation: Attend for any assessment and/or counselling as may be recommended by your probation officer or by Dr. Gojer or his designate and sign all necessary releases to enable your probation officer to monitor your compliance with this term; Have no contact with any child under the age of 18 unless the child is your natural son; Not to date anyone who has custody of a child who is under the age of 18 years old.

Released: August 10, 2011 Signed: “Justice H. Borenstein”