R v. O. D., 2019 NSSC 411

SUPREME COURT OF Nova Scotia Citation: R v. O. D. , 2019 NSSC 411 Date: 20190731 Docket: 484212 Registry: Sydney Between: Her Majesty the Queen v. O. D. Restriction on Publication:

Section 486.4 Judge: The Honourable Justice Patrick J. Murray Heard: July 31, 2019, in Sydney, Nova Scotia Oral Sentencing: July 31, 2019 Counsel: Christa MacKinnon for the Crown Allison Aho for Mr. D.

Section 486.4 - Order restricting publication — sexual offences 486.4

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(

i) to (iii). Mandatory order on application

(2) In proceedings in respect of the offences referred to in paragraph (1)(

a) or (b), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. Child pornography

(3) In proceedings in respect of an offence under

section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or

transmitted in any way. Limitation

(4) An order made under this

section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. By the Court: Facts [ 1 ] The facts have been agreed to in an Agreed Statement of Facts filed with the Court as Exhibit 1. Circumstances of Offence [ 2 ] This offence took place at a high school where the Complainant was a student. She was attempting to access the school’s internet to complete a project.

The Accused was a custodian at the school, and he let her in the school for warmth and allow her to better access the internet. In that sense, he held a position of authority over her not only as an adult but as custodian of the school. [ 3 ] It was not a position of trust in the usual way, in that he was not a teacher or relative, but he was in control of her entering and took advantage of the situation that involved a vulnerable teenager who was just 17 years of age at the time. Circumstances of Offender [ 4 ] Mr. D. is 47 years of age. He has a family, his wife is here today as well as his four children. Mr.

D. had a difficult upbringing which was marked by alcoholism and family violence, this is evidence in the Gladue report which has been provided to the Court. As mentioned, suicide was prevalent on his father's side of the family. His parents had a difficult relationship and a difficult marriage. [ 5 ] He dropped out of high school and has limited education as a result of that. Principles of Sentencing [ 6 ] The law is clear that where young children are subject to this kind of abuse a clear message must be sent, that such abuse will not be tolerated with appropriates sentences being imposed.

This is codified in the Criminal Code at

section 718.01 which states that the principles of denunciation and deterrence are the primary objectives in determining a just sentence in these types of instances. [ 7 ] Sentencing is however an individualized process and a wide range of sentences have been imposed depending on the individual circumstances of the offence and the offender. [ 8 ] The Crown cautions the Court to ensure that the sentence handed out reflects the proper degree of moral blameworthiness by the offender. Based on these facts the degree of moral blameworthiness is high. The victim, Ms. L. M., was a young and a vulnerable teenager. [ 9 ]

Section 718.2 deems as an aggravating circumstance a situation when victim under 18 and also when the Accused is in a position of trust. [ 10 ] The Defence points to

section 718.2(

e) in submitting that Mr. D. is an aboriginal person and the Court must consider the least restrictive sentence in terms of incarceration, while acknowledging that a custodial sentence is appropriate to reflect society's abhorrence of crimes against children and young victims. Nature of the Assault and Victim Impact Statement [ 11 ] The actions of Mr. D. as a result of those the Complainant's bodily integrity was compromised and her personal privacy invaded.

In her victim impact statement she stated that since this offence she has not felt safe outside her home, her grades and performance have been affected negatively. She has also blamed herself, suffered from depression and felt shame as a result of the assault. [ 12 ] There has been a psychological impact on the victim, L.M., although I have no medical evidence in this regard. Prior record [ 13 ] Mr. D. does have a criminal record, but it is dated and bears little relation to the offence before the Court. The Crown is not seeking to rely on it to any significant degree.

Caselaw [ 14 ] I have reviewed the extensive case law provided and acknowledge that counsel have both provided thorough briefs in advance of the sentencing hearing. I have taken note of Justice Chipman's decision in R v. Prosper , [2017] N.S.J. No. 253 , where he also referred to J. Gogan decision in R v. C. B. K , 2015 NSSC 62 , and J. Ross’s decision in R v. S. J. P. , 2016 NSPC 50 . [ 15 ] There are some differences between this case and Prosper are the age difference, 30 not 4, the breach of trust and whether the accused’s acts were impulsive. I will later address this is more detail.

[16] In addition, there are Gladue factors present here, some of which have been mentioned, and Mr. D. entered a guilty plea to thisoffence before the trial began trial, thus accepting responsibility for his actions and eliminating the necessity for a trial.

This relieved thevictim of the need to testify. [17] The aggravating factors involved are: 1) the nature of offence itself; 2) the age of the victim; 3) the vulnerability of the victim;and 4) the impact on her as described in her Victim Impact Statement. [18] The mitigating factors are: 1) the guilty plea prior to trial; 2) the presence of Gladue factors that warrant consideration withrespect to principle of rehabilitation and/or treatment of the Accused; and 3) possible need for mental health treatment as indicated in theGladue report.

Analysis and Decision [19] The Defence poses what is perhaps the germane question on these facts at page 8 of its brief: …‘how can a sentence achieve the principles of deterrence and denunciation while also meeting the principles outlined in R v. Gladue, (SCC), [1999] 1 S.C.R. 688, and s 718.2(

e) of the Criminal Code?’ [20] Further, the court endorses the Defence statement of the relevant principles at play in this case at page 11, prior to the jointrecommendation being made. The Defence accepts that denunciation and deterrence are primary principles of sentencing in a case where the victim is under the age of18, pursuant to s 718.01 of the Criminal Code. However, this must be balanced with other relevant sentencing principles, specifically,718.2(

e) of the Criminal Code. Mr. D. was born and raised in […], Nova Scotia, and continues to reside there. [21] In its submission, the Crown emphasizes the importance of the proportionality principle, stating at page 14 that: It is respectfully submitted that in arriving at a “just and appropriate” sentence for Mr.

D., this Court must be careful to ensure that thesentence to which he is ultimately subjected is a true and accurate reflection of his moral blameworthiness or culpability in all thecircumstances and is in keeping with his record and prospects. [22] On the facts as agreed, it is not entirely clear that Mr. D. acted impulsively.

He first invited the victim into the school, was withher on and off for 30 minutes discussing various topics, then invited her into the teacher’s office and then twice asked her if she couldkeep a secret. [23] It may have been unexpected in terms of her showing up that day but once there, there was some amount of planning involvedprior to the actions of Mr. D., which were egregious. [24] The Defence had referred to the Prosper decision, as similar in terms of the assault, but acknowledges the circumstances hereare more aggravating.

There are similarities in the manner of committing the offence, but as noted, the age difference here is muchgreater. [25] In Prosper there was also no trust relationship. In the case of Mr. D., given his position of being around children as part of hisemployment, there was likely a trust relationship even if it was an implied one and otherwise a breach of his authority over the victim.

He has paid a heavy price for his involvement, having lost his job he held for 21 years. [26] In both cases the victims were of a similar age, very young at 16 and 17 respectively. [27] The Crown takes the valid position of stating that young children need to be protected from these crimes, which by their natureare inherently violent. [28] It has been pointed out by the Defence, these facts do not involve threats, striking, or sexual intercourse.

This is not mitigating,says the Defence, but says there is the absence of these factors in the present case. [29] The Crown, however, maintains as part of the joint recommendation that that a custodial term of 2 years is warranted given thepresence of aggravating factors, including the age of the victim, and a breach of trust by Mr. D., including the Gladue factors. The Courtrecognizes as well that this offence took place in a school which is itself, aggravating, even though it was outside normal school hours.

Itis perhaps the last place one might expect such an offence would occur. [30] As stated, there is the presence of certain Gladue factors which must be considered. In my view, the Gladue factors here aresignificant, ranging from alcohol abuse and family violence to suicide and the injecting of solvents by Mr. D. as a youth. [31] The test on a joint recommendation is well known and stems from the Supreme Court of Canada in R v. Anthony Cook, 2016SCC 43.

It is the public interest test and is considered stringent. [32] This Court should only refuse to accept a joint recommendation on sentence if it is of the view that accepting it would bring theadministration of justice into disrepute or would otherwise be contrary to the public interest. [33] Applying this test, I am satisfied that a period of custody is appropriate in these circumstances, I find that a federal term of 2years in these circumstances would not bring the administration of justice into disrepute or be contrary to the public interest.

Thesentence is severe enough to meet the principles of general and specific deterrence which must be the focus in crimes against children. [34] It also has a remedial focus in that Mr. D. will be able to avail himself of federal programs offered to assist in any treatment he

needs, which has been referred to in the Gladue report. [ 35 ] Weighing all of the facts, circumstances, submissions, sentencing principles in ss. 718-718.2; and the impact on the victim, I find the joint recommendation to be in an appropriate range considering the aggravating and mitigating factors in this case. I concur with the Crown that in all of the circumstances it should be no more, having regard also to the lack of a serious criminal record, and the remorse and acknowledgement of guilt made by Mr. D.

The guilty plea is a significant mitigating factor, notwithstanding the obvious impact on the victim. [ 36 ] I therefore sentence Mr. D. to a 2 year period of incarceration as per the joint recommendation. Ancillary Orders [ 37 ] With respect to the s. 109 firearms prohibition for 10 years, I will grant this mandatory order subject to the sustenance exception in s. 113 of the Criminal Code . As well, I grant the DNA Order and the SOIRA Order for 20 years. [ 38 ] I am not going to grant the order under

section 161 requested by the Crown. The sentence being handed to Mr. D. is a significant penalty and given his involvement in the community and the fact that he lost his job, I think such an order would be unduly harsh. It may also interfere with the healing process both for Mr. D. and the community going forward so I respectfully decline to grant that order. Murray, J.