2012 QCCQ 918, 2012 QCCQ 918

Unofficial English Translation R. c. Lavoie 2012 QCCQ 918 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF QUEBEC LOCALITY OF QUEBEC "Criminal and Penal Division" Nos.: 200-01-141915-094 / 200-01-143029-100 / 200-01-145406-108 200-01-153076-116, 200-01-155438-116 DATE: February 10, 2012 ______________________________________________________________________ PRESIDED BY THE HONOURABLE CHANTALE PELLETIER, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v.

RAYMOND-MARIE LAVOIE Accused ______________________________________________________________________ SENTENCING JUDGMENT ______________________________________________________________________ BACKGROUND [ 1 ] The accused pleaded guilty to sexual offences committed against thirteen minor boys. [ 2 ] The accused is a Redemptorist priest.

The events took place between 1973 and 1985, when he was the supervisor of the dormitory at a boarding school. [ 3 ] The alleged acts were sexual touching over and under clothing and masturbation in respect of five of the victims. [ 4 ] One of the victims made a police complaint nearly thirty years after the events. Following this report, the other victims also came forward to denounce the accused's acts. THE FACTS X [ 5 ] X was 13 years old. The accused masturbated him on several occasions. The events took place in the accused's bedroom and in a retirement home belonging to the religious community.

The assaults took place over a period of about four months. Y [ 6 ] Y was 13 years old. On a few occasions, while he was in bed, the accused touched him on the stomach, thighs, and genitals, over his clothing. The sexual touching incidents did not last a long time. Once, the accused touched the victim's penis and the victim pushed the accused's hand away. The accused apologized. Z [ 7 ] Throughout the four years that Z lived at the boarding school, the accused would stroke Z’s buttocks and genitals over his clothing. When he was 12 years old, he had to stay in the infirmary for a few days.

During that time, the accused masturbated him on a few occasions. A

[ 8 ] When A was 13 years old, the accused stroked his thighs over his clothing on a few occasions. The victim threatened to report him, and the accused never did it again. B [ 9 ] B was masturbated by the accused several times when he was about 12 years old. The

summary of B's statement, which was recorded on video, indicates that the accused also touched him over his clothing. C [ 10 ] While C was in bed in the dormitory, the accused touched his genitals and masturbated him. These assaults took place once or twice a week over two school years, when the victim was about 13 years old. He also alleges that he was the victim of sexual touching by another priest of the congregation. D [ 11 ] The accused was D's music teacher. On several occasions, the accused touched the victim's genitals over his clothes. The victim was about 13 years old.

E [ 12 ] When E was between 13 and 15 years old, the accused stroked his genitals over and under his clothing. The assaults took place in the accused's room or office, two or three times a week. He also alleges that he was the victim of sexual touching by two other priests of the congregation. F [ 13 ] When he was 13 years old, F was alone with the accused, who placed one of his legs between the victim's thighs. The accused pressed his knee against the victim's genitals and moved his body back and forth.

On a number of occasions during his years at the boarding school, the accused stroked F's hair, the back of his neck, and his back. F also alleges that he was the victim of sexual touching by two other priests of the congregation. H [ 14 ] H was 13 years old. He occasionally slept in the accused's room, on a mattress on the floor. On approximately ten occasions, he felt the accused's body close to his own as he was sleeping. Sometimes the accused placed the victim's hand around his penis. G [ 15 ] When G was 14 years old, there were two occasions where the accused touched his penis over his clothes.

He also alleges that he was the victim of sexual touching by two other priests of the congregation. I [ 16 ] I attended the boarding school for a few months when he was 12 years old. Once, when he had permission to take a shower in a private room, the accused touched his genitals and began masturbating him, while another priest was present. The victim defended himself and the accused stopped touching him. After this event, the victim convinced his father not to send him back to the school. J [ 17 ] J was 13 years old. At that age, he was a sleepwalker.

One night, he woke up in the accused's bed, lying on top of the accused, as the accused stroked his body and hips. J got up immediately. He did not have any other experiences with the accused. THE IMPACT OF THE CRIMES [ 18 ] Two victims were heard at the hearing. [ 19 ] X testified with great emotion about his feelings: his shame and his issues with social and intimate relationships, including his relationship with his own children.

He has had to see a psychologist. [ 20 ] He talked about how he has problems being in relationships with others and his sadness about having been abused by a man who was a father figure to him. [ 21 ] The written statements of F, J, E, H, and I describe the impact of the accused's acts: insomnia, difficulty concentrating, and intimacy issues. It is worth recalling that some of them were also the victims of sexual touching by other priests of the congregation. THE ACCUSED

[ 22 ] Today, the accused is 71 years old. When he committed the offences, he was between the ages of 34 and 45. He has no criminal record. [ 23 ] He testified at the sentencing hearing. He regrets the crimes he committed and apologizes to the victims. For the last two years, since the offences were reported, he has lived in shame. A medical report describes his psychological distress since the charges were brought. [ 24 ] His community has imposed very restrictive conditions on him. He lives in the infirmary. He is supervised and accompanied wherever he goes. He can no longer drive.

The authorities of the community even took his telephone away. He has submitted to these conditions. [ 25 ] He is aware that he deserves a prison sentence, and he accepts it. He is ready to undertake therapy. THE EXPERT REPORTS [ 26 ] After the complaints, the accused saw experts about his anxiety and for counselling.

The sexologist's assessment points out that the accused recognizes the seriousness of his actions and regrets the harm he caused the boys. [1] The sexologist believes that the risk of re-offending is very minimal. [2] [ 27 ] At the hearing, the probation officer testified about the pre-sentence assessment she prepared. She pointed out that the accused recognizes his guilt and admits his inappropriate behaviour. He has expressed empathy toward the victims with whom he was the closest. She believes that the risk of re-offending is weak, considering his age and the fact that he no longer has access to young people.

POSITIONS OF THE PARTIES [ 28 ] The prosecution seeks an eight-year prison sentence, considering the number of victims, the impact of the offences on them, and the abuse of authority. [ 29 ] The defence argues that a sentence of less than two years with probation would be suitable. Defence counsel argues that, given the age of the accused and his supervision by his community, the risk of re-offending is non-existent. ANALYSIS [ 30 ] The Court must apply the fundamental principle set out in

section 718.1 Cr. C. whereby the sentence must be proportionate to the gravity of the offence and to the degree of responsibility of the offender. [ 31 ] Aggravating and mitigating circumstances relating to the offence or the offender's situation must also be taken into consideration. [ 32 ]

Section 718.2 Cr. C . also provides that abuse of a child and abuse of a position of authority constitute aggravating circumstances. [ 33 ] The offences of indecent assault on a male, sexual assault, and gross indecency are punishable by a maximum term of imprisonment of ten years and five years, respectively. [ 34 ] An overview of judgments on sentences (see

schedule 1) for priests in positions of authority accused of sexual offences clearly shows that each case should be considered on its own merits. The sentences vary from a few months' imprisonment to eight years behind bars. It also shows, however, that sentences for similar crimes range between twelve months and four years, with sentences adjusted to the circumstances of each case. [ 35 ] More specifically, in R. v. Kirouac , [3] the accused was sentenced to thirty-six months' imprisonment for assaulting three boys between 9 and 15 years of age.

The accused was deacon at the church attended by the families of the victims. He committed acts of masturbation and fellatio on the victims over a period of five years. The actions were repeated about a hundred times on each of the victims. [ 36 ] In R. v. R.C ., [4] the accused was sentenced to fifteen months' imprisonment for assaulting eight boys between 7 and 16 years of age. The accused was a parish priest. He committed sexual touching on a number of occasions. [ 37 ] In R. v. Noreau , [5] the accused was sentenced to twelve months for assaulting seven boys who were 12 and 13 years old.

The accused was a religious studies teacher. With one of the victims, the acts alleged included masturbation and fellatio. With the other victims, the acts were touching of the genitals. [ 38 ] Each of these judgments highlights the importance of the factors of denunciation and deterrence. [ 39 ] In this case, counsel for the defence suggests that a sentence of less than two years could include a probation order and an obligation to undergo therapy. Bear in mind that the accused is 71 years old. He is no longer in contact with young people and apparently has not re-offended since 1985.

The probation officer believes that the risk of re-offending is weak. Moreover, the isolation that his religious community has imposed on him prevents him from any further contact with young people. The objective of rehabilitation therefore appears to be secondary to the significance of the general objectives of denunciation and deterrence.

[ 40 ] The sentence suggested by the prosecution, however, also appears to be clearly inappropriate, as it fails to strike the proper balance between the gravity of the offence and the responsibility of the offender. [ 41 ] In M. (C.A.) , [6] the Supreme Court stated the following with respect to sentencing: ... retribution bears little relation to vengeance... Vengeance, as I understand it, represents an uncalibrated act of harm upon another, frequently motivated by emotion and anger, as a reprisal for harm inflicted upon oneself by that person.

Retribution in a criminal context, by contrast, represents and objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender's conduct.

Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more . [ 42 ] In L. (J.-J.) [7] the Court of Appeal, per Otis J.A., surveyed the sentencing factors to be considered in cases involving sexual offences.

They include the nature and intrinsic gravity of the offences, their frequency and the time period over which they occurred, abuse of a relationship of trust or authority, the disorders underlying the commission of the offences, the accused's conduct after the fact, and the impact of the crime on the victims. [ 43 ] In this case, the factors to be considered are the following: - The offences were perpetrated against thirteen victims, all between 12 and 14 years old, when the accused was in a position of authority; - In the cases of ten of the victims, the offences were repeated several times; - The commission of the offences extended over a period of twelve years.

The element of premeditation is significant, since the accused preyed on new victims every school year. - The victims suffer traumatic after-effects.

The testimony of X and Y and the written statements of the other victims all demonstrate that these events have marked them for life. - The accused's guilty plea means that the victims are not required to testify. - The accused has expressed regret and acknowledges that his offences caused harm to the victims. - Several of the acts alleged are sexual touching, often over the clothing. - The accused ceased his acts as soon as the teenager expressed his objection or his refusal to be touched. - The accused has no criminal record and has not re-offended since 1985. [ 44 ] The most determinative aggravating factor is without a doubt the abuse of his position of authority.

The parents who entrusted their children to these schools expected them to be safe and that they would be protected by persons who took their delegated responsibilities seriously. As dormitory supervisor, the accused was in a privileged position and, as a result, his young, defenceless prey was within arm's reach. [ 45 ] In light of all of the aggravating and mitigating circumstances, a sentence of three years' imprisonment seems appropriate. CONCLUSIONS [ 46 ] The accused is sentenced to a term of imprisonment of three years on each of the counts, to be served concurrently. [ 47 ] Under

section 487.051 Cr. C. , the Court makes an order authorizing the taking of samples of bodily substances for the purpose of DNA analysis on each of the counts. [ 48 ] Under

section 490.012 Cr. C. , the Court orders the accused to comply with the Sex Offender Information Registration Act. Because the accused has been convicted of more than one of the designated offences, he shall comply with this order for life. [ 49 ] Under

section 743.21 Cr. C ., the Court makes an order prohibiting the accused from communicating, directly or indirectly, with X, Y, Z, A, B, C, D, E, F, H, G, I, and J during the period of detention except through counsel. [ 50 ] Considering the period of incarceration, the Court exempts the accused from paying the victim surcharge. __________________________________ CHANTALE PELLETIER, J.C.Q. Mtre Carmen Rioux For the prosecution Mtre Serge Goulet For the accused

Dates of hearing: July 11 and October 28, 2011

SCHEDULE 1 LIST OF AUTHORITIES Citation Offence SentenceR. v. Cloutier, 2011ONCA 484 4 victims between11 and 13 years oldIndecent assault 5 years R. v. Noël, 2010 NBPC 818 victims between8 and 16 years old Gross indecency, indecentassault, assault (sexual touching,fellatio, anal intercourse) 8 years R. v. Przybylski, 2007ONCA 733 2 victims Sexual assault, anal intercourse 5 years R. v. P.L. 2006 QCCA1133 1 victim,12 yearsold Indecent assault 12 months R. v. Bouffard, 2006QCCP 2140 1 victim Indecent assault, grossindecency (fellatio, sodomy,sexual touching) 15 months R. v.

Kirouac, 2006QCCP 1646 3 victims between 8and 15 years old Sexual assault (masturbation,fellatio) 36 months R. v. Noreau, J.E. 2005-398 (C.Q.). 7 victims between12 and 13 years oldIndecent assault, sexual assault,invitation to sexual touching 12 months R. v. R.C., J.E. 2004-1244 (C.Q.). 8 victims between 7and 16 years old Sexual assault, indecent assault,sexual interference 15 months R. v. Holmes, [2002]O.J. No. 3321 (Ont. Sup. Ct.). 12 victims between9 and 15 years old Indecent assault 2 years less 1 dayto be served inthe community R. v. Cromien, (ON CA),[2002] O.J. No. 354 (Ont.

C.A.). 1 victim,13 yearsold Indecent assault 20 months R. v. Kneale, [1999] O.J.No. 4062 (Ont. Sup. Ct.). 1 victim,16 yearsold Sexual assault (fellatio) 9 months to beserved in thecommunity Citation Offence SentenceR. v. Bromley, [1998]N.J. No. 229 (Nfld. Sup. Ct.). 4 victims between13 and 15 years oldSexual assault, gross indecency,indecent assault, sodomy 78 months R. v. F.P.V.T., [1995]A.J. No. 83 (Alta. Prov. Ct.) 7 victims between 6and 17 years old Sexual assault, indecent assault 2 years less 1 day R. v. Blancard, [1992]B.C.J. No. 762 (B.C.

C.A.). 5 victims between 6and 11 years old Indecent assault 1 year R. v. Morrissey, [1992]O.J. No. 2965 (Ont.S.C.J.) 3 minor victims Gross indecency, indecentassault, attempt to commitsodomy 18 months R. v. Antle, [1991] N.J.No. 331 (Nfld. Sup. Ct.). 2 minor victims Indecent assault (touching ofgenitals) 3 and 5 monthsconcurrent R. v. Bennett, [1990]N.J. No. 162 (Nfld. Sup. Ct.). 32 victims between11 and 14 years oldGross indecency (masturbation,sexual touching) 4 years

R . v . Kelly , [1988] N.J. No. 1 (Nfld. C.A.). 2 victims,12 years old Sexual assault 4 months