R. v. Fizzard, 2020 NSSC 54

SUPREME COURT OF Nova Scotia Citation: R. v. Fizzard , 2020 NSSC 54 Date: 20200211 Docket: 480221 Registry: Halifax Between: Her Majesty the Queen v. Roy James Fizzard Restriction on Publication: Criminal Code ss. 486.4 , 486.5 Identity of Victim D E C I S I O N Judge: The Honourable Justice James L. Chipman Heard: February 11, 2020, in Halifax, Nova Scotia Oral Decision: Written Decision: February 11, 2020 February 12, 2020 Counsel: Stacy Gerrard, for the Provincial Crown Alfred Seaman, for Roy James Fizzard By the Court: Introduction [ 1 ] On September 20, 2018, Mr.

Fizzard plead not guilty to the following single count Indictment: 1. that he between the 1 st day of October, 2017 and the 1 st day of January, 2018, at, or near Lower Sackville, in the County of Halifax, in the Province of Nova Scotia, did unlawfully commit a sexual assault on CT, contrary to

section 271 of the Criminal Code . [ 2 ] A trial before a Justice of the Supreme Court of Nova Scotia sitting alone was subsequently scheduled for June 3, 4, and 5, 2019. The trial dates were subsequently adjourned until December 3, 4, 5 and 6, 2019. [ 3 ] On November 28, 2019 Mr. Fizzard changed his plea to guilty. During this Crownside appearance a Pre-Sentence Report (PSR) was ordered and the sentencing was set for today’s date. [ 4 ] In advance of passing sentence today I have listened to the oral submissions and Mr. Fizzard’s expression of remorse in his comments to the Court.

I have read the briefs and enclosed cases as well as the PSR, Victim Impact Statement (VIS), psychological assessment and

summary referable to the victim. Facts

[ 5 ] In or around October 2017, the victim, CT, and her mother, rented an apartment at [redacted], in which the offender, Roy Fizzard, was a maintenance person at the building. [ 6 ] On or around October 2, 2017, the victim, CT, was in the process of moving into the new apartment and was alone while waiting for her mother to arrive with their personal effects. Mr. Fizzard entered the [redacted] apartment and, while there in his professional capacity, lead CT into the kitchen pantry, wherein her pants were lowered.

The offender then placed his hand on her breast and her buttocks, and exposed his penis. [ 7 ] After the incident, Mr. Fizzard told Ms. T not to disclose what he had done to her mother or to his wife. [ 8 ] In or around December 2017, the sexual assault was discovered by ST when Mr. Fizzard entered the [redacted] apartment to inspect a possible issue with regard to television reception. While there, ST overheard Mr. Fizzard make a comment to CT intimating the sexual assault. [ 9 ] During a Chartered and cautioned interview with Detective Constable Steve Rideout, Mr.

Fizzard admitted to knowing that, at the time of the sexual assault, the victim was cognitively impaired, referring to her as “slow” and “not the smartest cookie”. PSR [ 10 ] Probation officer Alex N. Llewellyn prepared the PSR dated January 13, 2020, which reveals the following with respect to Mr.

Fizzard: • 70 years of age • grade 6 education • no criminal record • grew up socio-economically poor in rural Newfoundland • was nine years old when his mother died • three brothers and one sister • married for 36 years • positive relationship • two grown children of the marriage • strong relationships with his children • previous marriage of four years • two adult daughters from this marriage • good relationships with his two daughters • Fishing Masters 3 recipient from the Nautical Institute • retired at age 68 as an Able Seaman • receives old age and Canada pensions • on medication for physical health issues • no mental health concerns • does not use illicit drugs and rarely alcohol • acknowledges guilt insofar as touching the victim • open to attending any Court directed programs [ 11 ] The PSR is effectively summarized by the author at p. 5: The subject has no previous criminal record and retired after a lengthy career in the fishing industry.

He lived an upbringing that consisted of living in a remote area, with limited or non-existing resources, and entered into the work force at a young age. In addition, he was faced with considerable family trauma and stress, losing siblings and his mother. The subject did appear to minimize the offence; however, to his credit, he did take responsibility for his actions and has expressed not wanting to have any contact with the victim.

The PSR concludes with this para.: As this is a sexual offence, a comprehensive sexual offender assessment will be required to determine the match of offender risk level to treatment. The Provincial Sexual Offender Assessment and Treatment Program, as coordinated by the Forensic Sexual Behaviour Program of the Nova Scotia Health Authority, is designed at low-to-moderate intensity and is not designed to accommodate the

treatment needs of high-risk offenders and are available primarily within federal facilities operated by the Correction Service of Canada. Community-based treatment includes cognitive behavioural relapse prevention programs and not individual therapy. Treatment includes six months of structured weekly group sessions. Due to the volume of cases being processed, assessment/treatment could take two-to- three years to complete from the date of referral. Where the offender is deemed to have the financial means, payment for the assessment portion of treatment will be required at a cost of $1,000.00.

VIS [ 12 ] Today the Court received and reviewed CT’s VIS. Ms. T reports that Mr. Fizzard “has left an emotional impact” on her life. She cannot stop thinking about the sexual assault. Mr. Fizzard’s actions caused Ms. T great upset and she received psychological treatment over the course of two months. Baker Psychological Assessment and

Summary [ 13 ] Erica Baker, PhD., assessed the victim of the sexual assault, CT, on July 16, 2019. Her comprehensive 21-page report confirms that the purpose of the evaluation was to determine the level of understanding that Ms. T has and whether she is easily influenced or manipulated. The testing focussed on evaluating specific areas of functional ability, including: 1. intellectual functioning; 2. language; 3. learning and memory; 4. visual-spatial constructional ability; 5. motor skills; 6. executive functioning and attention; and 7. adaptive functioning. [ 14 ] The

summary of results demonstrate that the percentile ranges for Ms. T fall within the less than one percentile to tenth percentile. In other words, Ms. T scored > 1 to ten percent higher than individuals of the same age; and, conversely, that between 90 to 99 <% of the individuals of her same age scored higher than her. Dr. Baker summarized Ms. T’s intellectual functioning as “extremely low” and stated “[N]inety-eight percent of same-age people would have obtained scores that were higher than Ms. T”. [ 15 ] Dr. Baker reported that Ms. T “fell well below the level of same-age peers across cognitive academic domains.

Adaptive functioning is also well below average”. Dr. Baker reported that, in her opinion, Ms. T does not have the functional or adaptive ability to work or live independently. [ 16 ] Dr. Baker concluded both of her reports by stating: To conclude, in my opinion, given Ms. T’s Extremely Low level of intellectual functioning and impairments in adaptive functioning it is likely that, in many situations, Ms. T will not have a comprehensive understanding of the circumstances in which she finds herself, and will likely not have the requisite capacity to give an informed consent. Ms.

T is a vulnerable individual who will likely be easily influenced or manipulated. [ 17 ] Dr. Baker stated that Ms. T was pleasant and cooperative throughout the testing and opined that the results of the assessment are a valid and reliable estimate of her level of functioning in a quiet setting. Dr. Baker’s 18-page

summary report dated January 26, 2020 is consistent with her earlier report. Positions of the Parties Crown [ 18 ] The Crown recommends a jail term of 12-18 months, 2 years probation and ancillary orders. In their brief the Crown states as follows: It is clear from the Criminal Code and from cases dealing with similar matters that these offences are serious and the overriding considerations in sentencing must be denunciation and deterrence, both specific and general.

It is clear with the growing trend of minimum sentences for offences involving vulnerable members of society that such offences are not to be treated lightly and a clear message must be sent that they will not be tolerated by society.

Taking into consideration the circumstances of the offence and the offender – the primary caregiver of the building in which the victim resided – and the vulnerability of the victim, the principles of sentencing, the guidance provided by the case law and the principle of totality the Crown respectfully submits that a sentence of twelve to eighteen months incarceration followed by 2 years of probation is appropriate. In addition, the Crown is also requesting an Order under s. 109 prohibiting Mr. Fizzard from possessing any firearms, cross-bow, restricted weapon, ammunition and explosive substance for ten years.

The offences for which the accused has been convicted are primary designated offences pursuant to s. 487.04 of the Criminal Code . It is

therefore respectfully submitted that the Court, by virtue of s. 487.051 of the Criminal Code must order the accused to provide a sampleof his blood for inclusion in the DNA Databank Offender Registry. The Crown is also requesting a Sexual Offender Information Registration Act (SOIRA) Order in accordance with the requirements of s.490.012. Pursuant to s. 490.013 the applicable time period would be life. [19] Today the Crown again emphasized that the offence involved a vulnerable person in her own home.

Defence [20] The Defence says there are parallels with this case and the trial decision and subsequent sentencing decision of Justice Duncanin R. v. Comeau, 2017 NSSC 62 and R. v. Comeau, 2017 NSSC 208. The Defence submits the facts and circumstances are on par withMr. Fizzard’s matter and therefore the sentence should be in the same range. The point is made that unlike Mr. Comeau, Mr. Fizzard hasplead guilty and accepts full responsibility for the facts that are now before the Court. Specifically, the Defence recommends asentencing for Mr.

Fizzard as follows: • 90 days custody to be served intermittently; • Probation during that time and for 24 months to follow with the following conditions: - you are to keep the peace and be of good behaviour; - you are to appear before the court when required to do so by the court; - you are to notify the court, probation officer, or supervisor, in advance, of any change of name, address, employment oroccupation; - you are to report to a probation officer at 277 Pleasant Street, Dartmouth, Nova Scotia, before the end of business on February 12,2020 and you are to report to a probation servicer as required and directed by your probation officer or supervisor; - you are to remain within the Province of Nova Scotia unless you have written permission from you probation officer; - you are to have no direct or indirect contact or communication with Ms.

T; - you are to make reasonable efforts to locate and maintain employment or an education program as directed by your probationofficer; - you are not to accept employment in any facility that is used as a residence for persons with mental or physical disabilities; - you are to attend for mental health assessment and counselling as directed by your probation officer; - you are to attend for assessment, counselling or a program directed by your probation officer; - you are to participate and cooperate with any assessment, counselling or program directed by the probation officer. • DNA Order (primary) • SOIRA Order for 20 years • S. 109 Prohibition Order (ten years) Mitigating and Aggravating Factors [21] In R. v.

H.C.D., 2008 NSSC 246, Justice Warner at para. 15 summarized the mitigating and aggravating factors affectingsentencing in sexual assault cases which was drawn from previous case law. These factors are as follows: 15 A useful starting point for the factors affecting sentencing in sexual assaults case is found in the Quebec Court of Appeal casecalled R. v. J.L. That decision enumerated seven factors that were recently repeated by Judge Tufts in a case called R. v. S.C.C. 2004NSPC 41 , [2004] N.S.J. No. 272 which is sometimes cited in Courts of Nova Scotia respecting relevant factors for these kindsof offences.

a) First is the nature and intrinsic gravity of the offence, which is affected, in particular, by the use of threats, violence orpsychological manipulation;

b) Second is the frequency of the offence and the time period over which it was committed;

c) Third is the abuse of trust and abuse of authority involved in the relationship between the offender and the victim;

d) Fourth is any disorder underlying the commission of the offence, whether the offender had psychological difficulties, disorders ordeviancies and other similar factors;

e) Fifth is whether the offender has previous convictions of a nature similar to those which are before the Court;

f) Sixth is the offender's behaviour after the commission of the offence such as confessions, assistance in the investigation,

immediate involvement in a treatment program, potential for rehabilitation, and financial assistance, as well as empathy and remorse for the victim; and,

g) The time between the commission of offence and the guilty plea or verdict as a mitigating factor depending on the offender's behaviour. [ 22 ] Applying the facts to the above factors yields both mitigating and aggravating circumstances. With respect to the former, Mr. Fizzard plead guilty, is remorseful and accepts responsibility for his actions. The sexual assault is on the lower end of such assaults and it was a brief, one time event. He is a senior citizen with good family support. Mr. Fizzard is pro-social. He does not have a criminal record. [ 23 ] With regard to aggravating factors, Mr.

Fizzard took advantage of a woman whom he knew to be intellectually challenged. He did this during his work hours when the vulnerable woman was alone in her place of residence with him. Analysis and Disposition [ 24 ] This is indeed a grim situation. The October 2, 2017 sexual assault involved a then 68 year old offender and a woman in her late fifties. While the victim’s aged mother was away from the apartment they had just moved into, Mr. Fizzard ([redacted]) had CT lower her pants. He groped her breast and buttocks and exposed his penis. To compound matters, Ms. T is an intellectually challenged woman and Mr.

Fizzard knew this and took advantage of this vulnerable woman. [ 25 ] The relevant Criminal Code provision in effect at the relevant time states that: 271 Everyone who commits a sexual assault is guilty of (

a) an indictable offence and is liable to imprisonment for a term not exceeding 10 years ...; [ 26 ] There is no minimum prescribed penalty and therefore the available sentences include the granting of a discharge, imposition of a fine, a period of probation with conditions, and/or a period of imprisonment ( Criminal Code s. 731 ). [ 27 ] A conditional sentence is not available to Mr.

Fizzard because of the exception set out in s. 742.1(f)(iii) of the Criminal Code . [ 28 ] The court is required to determine what is a fit and proper sentence to impose having regard to the circumstances of the offence, the circumstances of the offender, and the principles of sentence as set out in s. 718 , 718.1 , and 718.2 of the Criminal Code . The Court must also look to the decisions of other courts, especially the appeal courts, for guidance in the application of these principles to the facts of the case. [ 29 ] Both parties have referred the Court to Justice Duncan’s sentencing decision in Comeau .

At paras. 27 – 35 Justice Duncan sets out the background of the case, which have several aspects in common with what we have here: 27 The offence is considered, by its nature, to be one of violence. Having said that the direct contact between the accused and Ms. W. was brief, without actual or threatened physical harm. The evidence is that the acts did not result in either physical or mental suffering to the resident. No weapons were used. There were no elements of confinement or other intimidation present. 28 The incident appears to have been spontaneous, brought on by the approach of Ms. W. to Mr.

Comeau, and his own willingness to accept her invitation. In my decision, I stated: 29 Dr. Meehan differentiated between the capacity to appreciate conduct and the capacity to give consent. In Ms. W's case it was her lack of an appreciation of the consequences of her activity which formed the basis for Dr. Meehan's conclusions. Therefore, a person such as Ms. W. can say that "yes this is what they want to do but they cannot appreciate the outcome of it".

She agreed that this would not necessarily be visible to a lay person who does not have access to the medical records or experience that she does. 29 So, the circumstances in this case are unusual in that Ms. W. had the appearance of someone able to consent to the sexualized behaviour and did, by her words and conduct, express her willingness to participate in this behaviour. However, medical opinion evidence showed that she lacked the necessary capacity that the law requires for her consent to be an excuse for the accused where he should have been alert to the issue. 30 Mr.

Comeau takes full responsibility for the fact that the onus was on him in these circumstances to remove himself from the situation. The facts of this case show the risks that can exist for society's vulnerable persons in Ms. W's circumstances, whether their vulnerability is a result of physical or mental infirmity. Caregivers, and persons like Mr. Comeau who perform a subsidiary role of support to them, have opportunities to take advantage of those vulnerable persons. This is what Mr. Comeau did.

It is in the societal interest to ensure that those in similar positions understand that there is a serious consequence for this type of behaviour. 31 Having said that, the loss of his job, the damage to his own sense of self, the damage to his family and the damage from the loss of respect from those who held him in such high regard should present a significant deterrent, both to Mr. Comeau and to others in similar circumstances.

His sense of shame, which resulted in his attempt to take his own life, also sends a significant message to caregivers and others who work with the infirm, about the consequences of this conduct. 32 This was an isolated offence. The offender was apparently undergoing some personal crisis that was observed by family and friends. 33 It is my impression that Mr. Comeau is a person who has led a simple life, and is not a sophisticated person. When I commented that he engaged in this behaviour for sexual gratification, that should not be taken as suggesting he is a sexual predator.

The evidence suggests that this incident resulted from a congruence of factors that would seem unlikely to recur. Mr. Comeau has no history of this

behaviour and he is unlikely to have the opportunity to work in a similar position in the future. 34 He was fully cooperative with his employers and the police investigation. His statements and his testimony were full of admissions of responsibility and remorse. 35 It has been more than two years since the offence occurred during which time he has complied with the terms of his release from custody. [ 30 ] The Court continues with this important comment, which I find apposite to this case: 36 Mr.

Comeau's removal from society by way of a period of imprisonment is not, in my opinion, necessary to accomplish his personal deterrence. Nor do I see jail as a positive factor in his rehabilitation. He has good insight to the wrongfulness of his conduct. He has a demonstrated ability to form long-lasting constructive relationships. He has been a good family man. He does not have substance abuse issues. [ 31 ] Justice Duncan went on to impose a sentence not unlike what the Defence has proposed following these comments at para. 67: 67 If a conditional sentence were available to Mr.

Comeau I would not hesitate to impose one based on the circumstances as I know them today. However, Parliament has not left that option to the courts and the defence has not chosen to challenge the legislation, so I must look to other available options that provide a proper balancing of the various factors in evidence here in arriving at a fit and proper sentence. [ 32 ] Having considered all of the circumstances I am of the view that an appropriate sentence for Mr. Fizzard must not involve sending this 70 year old man to jail for an extended period of time.

Rather, I see merit in the Defence’s submissions and hereby order the following: • 90 days custody to be served intermittently; • Probation during the above time (when not in custody) and for 24 months to follow these conditions: - you are to keep the peace and be of good behaviour; - you are to appear before the Court when required to do so by the Court; - you are to notify the Court, probation officer, or supervisor, in advance, of any change of name, address, employment or occupation; - you are to report to a probation officer at 277 Pleasant Street, Dartmouth, Nova Scotia, before the end of business on February 12, 2020 and you are to report to a probation servicer as required and directed by your probation officer or supervisor; - you are to remain within the Province of Nova Scotia unless you have written permission from your probation officer; - you are to have no direct or indirect contact or communication with CT; - you are to make reasonable efforts to locate and maintain employment or an education program as directed by your probation officer; - you are not to accept employment in any facility that is used as a residence for persons with mental or physical disabilities; - you are to attend for mental health assessment and counselling as directed by your probation officer; - you are to attend for assessment, counselling or a program directed by your probation officer; - you are to participate and cooperate with any assessment, counselling or program directed by the probation officer. • DNA Order (primary) • SOIRA Order for 20 years • S. 109 Prohibition Order (ten years) Chipman, J.