R. v. Gernon, 2016 ONCJ 311

Information No. 15-1506 CITATION: R. v. Gernon , 2016 ONCJ 311 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. THOMAS GERNON REASONS FOR SENTENCE BEFORE THE HONOURABLE JUSTICE D.A. HARRIS on April 19, 2016, at MILTON, Ontario

APPEARANCES : C. Kerr Counsel for the Crown P. Anderson Counsel for Thomas Gernon ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S Transcript Ordered .............................. April 19, 2016

Transcript Completed .............................. May 11, 2016 Ordering Party Notified ........................... May 11, 2016 REASONS FOR SENTENCE Harris, J. (Orally): Thomas Gernon entered guilty pleas to two counts of theft of children’s clothing in March and April of 2015. The Crown proceeded by indictment. He is before me today for sentencing. I have a joint submission for me to impose a conditional sentence of imprisonment for 18 months to be followed by probation for a further three years and I intend to give effect to that joint submission.

The position is a result of numerous discussions between Crown counsel and counsel for Mr. Gernon and the matter has also been subject of a number of judicial pre-trials. I have been provided with considerable background information regarding Mr. Gernon and I mention this before getting to the facts of the offences because it needs to be made clear in this case that this is not a simple theft of clothing case in the usual sense. Mr. Gernon was a member of the Glen Abbey Recreational Centre. Apparently he went there on a regular basis for the purpose of swimming.

Other individuals used the recreational centre to swim as well. On March 29, 2015, one man took his two year old daughter to the recreational centre. They went into the men’s change room and changed into their bathing suits. They left their clothing in an unlocked locker. Mr. Gernon went into the locker room and removed the daughter’s clothing. On April 5, 2015, another father took his three year old son and eight year old daughter into the recreational centre to swim. They used the men’s change room and changed into bathing suits.

Again, their clothes and, in this case, other valuables were left in an unlocked locker. Again, Mr. Gernon entered and removed the clothing of the girl. An investigation including review of videotapes outside the change room led to Mr. Gernon being questioned. He admitted to the thefts.

He complained of young girls being brought into the men’s change room and I note that in his statement to the police and in the letter he provided and some of the other materials he talked in terms of this being an over-reaction to a situation where young girls were being taken into a room where men would be changing their clothing and the girls would be changing as well in front of the men. The suggestion is that it was his disapproval of this practice that led Mr. Gernon to commit the offences. My concern is that there is clearly more to it than that. I have been provided with a report from Dr.

Mark Pearce who is a psychiatrist at the Center for Addiction and Mental Health in Toronto. The report is, as one would hope, quite extensive. It points out that Mr. Gernon is a 32 year old man with a number of mental health issues. I do not intend to go through the report in depth but I will note that diagnoses that have been made at different times have included various paraphilia’s, ADHD, pervasive development disorders such as Asperger’s syndrome, certain anxiety disorders, panic disorders and social phobias, Cluster B personality disorders and various cognitive disorders. There is a suggestion that Mr.

Gernon’s cognitive functioning ranges somewhere between moderate mental retardation and intellectual ability in the low average range. As far back as 2007 Mr. Gernon underwent phallometric testing and a diagnosis of pedophilia was confirmed. Now, during preparation of a risk assessment back in 2009, it is noted that Mr. Gernon admitted to various paraphilia’s including arousal to, “ diapers, pacifiers and girl’s underwear ”. I will pause at this point simply to indicate that this is where the extra concerns have arisen in this particular case.

Clothing was taken but of greatest concern to those of us in the judicial system is the fact that the underwear of young girls was taken.

Whatever Mr. Gernon’s motivation of revenge for people taking girls into a men’s locker room there is a fact that the items taken included something that he had previously admitted arousal by. Now, the report also indicates that Mr. Gernon has received counselling, treatment, and medication over the years for his various problems. With respect to the pedophilia it is indicated that he was prescribed anti-libidinal medication including Depo-Provera. It was continued, as I say, for a number of years. Apparently it was reduced gradually as of December 2013 and then discontinued in the summer of 2014.

There is some suggestion in the report that the pace at which it was discontinued may have been hastened by a misunderstanding on the part of the family doctor who understood “ decreased gradually ” to mean stop. It is my understanding and I believe that the “ Depo ” part of the Depo-Provera indicates that this is an injectable medication as opposed to one taken orally or by other means. Dr. Pearce concluded that it was not his opinion that Mr. Gernon suffered from a major mental illness.

In this regard he was simply excluding such things as schizophrenia or bi-polar affective disorder or depression or abuse of alcohol or drugs. He indicated that circumstances were such that he would support a diagnosis of pervasive developmental disorder not otherwise specified (PDDNOS). He goes on to discuss paraphilias separately. He points out that a paraphilia is a deviant sexual preference. It can describe a sexual preference for an inappropriate sexual object or activity. In this case he indicates that Mr. Gernon meets the criteria for bisexual pedophilia. He further specified that the preference of Mr.

Gernon in this regard is for young females under the age of five. Dr. Pearce also indicated that Mr. Gernon meets the criteria for sexual sadism. He goes on to state that fortunately it does not appear that Mr. Gernon has acted out on his sadistic interests. He goes on to indicate that he has other unusual sexual interests including an interest in urophilia, coprophilia, necrophilia, voyerism, toucheurism, partialism, and fetishism. He goes on to provide clinical

definitions of each of those categories. He addresses risk assessment. With respect to this he concludes as follows: Overall and taking into account clinical factors relevant in this case I would conclude that Mr. Gernon is at high risk of future sexual offence should he refuse to accept and continue to take anti-libidinal medication. I note that the alleged offences occurred within months of when his testosterone levels would have been expected to normalize. There is also the potential for serious re-offence given his paraphilic interests.

However, with ongoing psychological therapy which he is already benefitting from and potent libido reducing medication (best administered via intra muscular injection) his risk would be substantially lowered. He recommends that Mr. Gernon should continue with individual and group sexual offender treatment programming. He notes that family therapy is also likely to be a benefit since his mother’s minimization of her son’s difficulties increases his risk of re-offence. He suggests that Mr. Gernon should start treatment with Lupron, Depo-Provera or Cyproterone acetate as soon as possible. He points out that Mr.

Gernon can receive this from Dr. Woodside once he has been sentenced. He indicates that should Mr. Gernon not agree to this he will have to be monitored very carefully while in the community. If oral libido reducing medication is prescribed Mr. Gernon’s testosterone levels should be monitored monthly to ensure he is complying with medication as expected. He suggests that Mr. Gernon should have no contact or access to persons under the age of 16.

He should not be permitted to frequent places where children may be expected to be in attendance unless he is accompanied by an adult and is compliant with libido reducing medication. He should participate in vocational rehabilitation. This will help structure his time and improve his sense of self. He should not be in possession of a weapon. Materials provided to me include a five page letter from Mr. Gernon. A portion of the letter addresses his aversion to taking the medication that has been recommended. He points out that there are side effects.

One of the side effects he refers to specifically is tremendous weight gain. I am aware that there are other side effects that occur with Depo-Provera that have led other individuals over the years to also resist taking it on a regular basis. I am also aware of the fact that the intended result of taking the medication is for the purpose of averting even greater harm to other individuals in the community. So I am sympathetic to the fact that there are side effects but I stress to Mr.

Gernon that if he is to avoid running afoul of the law, the medication appears to be the best method for him to accomplish that goal.

Amongst the other materials are a number of reference letters. These include individuals who are involved with the Amateur Radio Club which Mr. Gernon has joined. He indicates that this is something that provides him with some pleasure and some meaning in his life. I also note that fortunately it is an activity that he can participate in while still subject to house arrest. It should be made very clear in my reasons here that I am accepting the fact that the sentence that I am being asked to impose is a very very tough sentence for a simple theft.

If this was just a matter of going into a locker room and stealing some property I would have difficulty accepting even a joint submission for a sentence that is this restrictive over such a long period of time. On the other hand, I note that the facts of the offence raise the specter that Mr. Gernon was heading down a very dangerous path towards what could have been more serious offences. While I refer to that I wish to go back. I skipped through probably about 95 percent of what is in the report, and omitted to mention that the report indicates that while Mr.

Gernon talks of sexual activity with children we are talking about a time when he was much much younger and there has been no such activity that has been alleged or proven for a long, long time. Mr. Gernon, in this particular case I am satisfied that the joint submission is an appropriate one. You will be sentenced to a conditional sentence of imprisonment to be served in the community and that will run for a period of 18 months. That will be followed by probation that will run for three years. The terms of the conditional sentence of imprisonment will include the statutory terms.

You will keep the peace and be of good behaviour. You will appear before the court when required to do so. You will report as the court directs in person to a supervisor and thereafter report when required by the supervisor and in a manner directed by the supervisor. You will remain in Ontario unless you have prior written permission from the court or the supervisor to leave the province. You will notify the court or supervisor in advance of any change of name or address and promptly notify the court or supervisor of any change in employment or occupation.

You will report in person to a supervisor immediately and after that at all times and places as directed by the supervisor or any person authorized by a supervisor to assist in your supervision. Further to that, you will cooperate with your supervisor. You must sign any releases necessary to permit the supervisor to monitor your compliance and you must provide proof of compliance with any condition of this order to your supervisor on request.

You will live at 504 Glenashton Drive, Oakville, L6H 4W5 or a place approved of by the supervisor and not change that address without obtaining the consent of the supervisor in advance. There will be house arrest. This home confinement condition will be in effect for the full duration of the sentence. You will remain in your residence or on the property of your residence at all times except between 1:00 p.m. and 5:00 p.m. on Saturdays in order to acquire the necessities of life or while in the company of your mother or any adult(

s) approved by your supervisor or any medical emergencies involving you or any members of your family, spouse, child, parent, sibling, or going directly to and from or being at court attendances and legal or medical or dental appointments, for going directly to or from and being at assessment, treatment, or counselling sessions. You will confirm your

schedule in advance with the supervisor setting out the times for these activities and I am also including a general clause allowing you to be out with the prior written approval of the supervisor. The written approval is to be carried with you during these times. During your period of home confinement you must present yourself at your doorway upon the request of your supervisor or a peace officer for the purpose of verifying your compliance with your home confinement condition.

Do not be in the company of or communicate directly or indirectly by any physical, electronic, or other means with males or females under the age of 12 years unless in the presence of another person or persons approved of in writing and in advance by the supervisor or your mother. Do not attend at the Glen Abbey Recreation Centre in Oakville. Weapons and permits.

Do not possess any weapons as defined by the Criminal Code for example a BB gun, pellet gun, firearm, imitation firearm, crossbow, prohibited or restricted weapon or device, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person.

You will attend and actively participate in all assessment, counselling, or rehabilitative programs as directed by the supervisor and complete them to the satisfaction of the supervisor for anger management, psychiatric or psychological issues, individual and group sexual offender treatment programming and family therapy.

Now, is he going to be able to see Dr. Woodside within 15 days? THOMAS GERNON: I have an appointment on the 28 th , Your Honour. THE COURT: So that is within 15 days. Good. You shall make an appointment with Dr. Woodside, a physician, or his designate within 15 days of this order for the purpose of receiving such medical counselling and treatment as may be recommended concerning libido reduction. You shall provide your treating physician with a copy of this order and the name, address and telephone number of your conditional sentence supervisor.

You shall instruct your treating physician that if you fail to take medication as prescribed by him or fail to keep appointments he is to advise your conditional sentence supervisor of such failures. You will not seek, obtain or continue any employment whether enumerated or not or become a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age — and in this case I am making it 16 years. With respect to the probation, sir, the terms are going to be very similar.

The one thing you are going to hear that is different is suddenly the word “ supervisor ” will be replaced by the words “ probation officer ”. I am expecting and I am hoping that those two people will be one and the same so there will be some continuity. You will keep the peace and be of good behaviour. Appear before the court when required to do so. Notify the court or probation officer in advance of any change of name or address and promptly notify the court or probation officer of any change of employment or occupation.

You will report in person to a probation officer within two working days of completing your conditional sentence and after that at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision. You will cooperate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this order to your probation officer on request.

You will live at a place approved of by the probation officer and not change that address without obtaining the consent of the probation officer in advance. Do not be in the company of or communicate directly or indirectly by any physical, electronic, or other means with males or females under the age of 12 years unless in the presence of another person or persons approved of in writing and in advance by the probation officer or in the presence of your mother.

Do not attend at Glen Abbey Recreation Centre or other facilities where persons under the age of 12 years can reasonably be expected to be and I am including at the discretion of your probation officer. Do not possess any weapons as defined by the Criminal Code for example, a BB gun, pellet gun, firearm, imitation firearm, crossbow, prohibited or restricted weapon or device, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person.

You will attend and actively participate in all assessment, counselling, or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer for anger management, psychiatric or psychological issues and for individual and group sexual offender treatment and programming. Again, you will continue to see Dr. Woodside, a physician, or his designate for the purpose of receiving such medical counselling and treatment as may be recommended concerning libido reduction.

You shall provide your treating physician with a copy of this order and the name, address, and telephone number of your probation officer. You shall instruct your treating physician that if you fail to take medication as prescribed by him or fail to keep appointments he is to advise your probation officer of such failures. Finally, you will not seek, obtain or continue any employment whether remunerated or not or become or be a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years.

Mr. Gernon, do you understand the terms of the conditional sentence of imprisonment and the probation? THOMAS GERNON: Yeah. MS. ANDERSON: He’s nodding yes. THE COURT: If you would stand up, please. THOMAS GERNON: Sorry, Your Honour. THE COURT: Do you understand the terms? THOMAS GERNON: Yes, Your Honour. THE COURT: Can you live up to them? THOMAS GERNON: Yes, Your Honour. THE COURT: You understand that if you breach the terms of either order you can be charged with an offence? THOMAS GERNON: Yes, Your Honour. THE COURT: Okay. I want to point something out to you, a few things.

There is a conditional sentence of imprisonment and there is a probation order. Do you understand that? THOMAS GERNON: Yes, Your Honour. THE COURT: There are some terms in each order that are different but there are some terms in both orders that are identical and then there are some that are different. But the other thing you have to realize is that in the eyes of the law there are significant differences between the two orders, okay? THOMAS GERNON: Yes. THE COURT: The Supreme Court of Canada has said that probation order is not punishment. A probation order is for rehabilitative purposes.

A conditional sentence of imprisonment on the other hand can be viewed as punishment and it serves a purpose of both deterrence and denunciation. The reason why they are different is one, because of the different terms. That is not the whole story because most of the terms that are in a conditional sentence can be placed in a probation order. What you have to realize is that these are treated differently when it comes to enforcement, okay?

It is easier for the police to process paperwork — well it probably is not easier, I just see fewer papers for a breach of a conditional sentence order then for breach of probation. More importantly, though the Crown Attorney only has to prove a breach on a balance of probabilities rather than beyond a reasonable doubt and that is a significant difference, sir.

The other part of it is that the Supreme Court of Canada has said that if you are accused of breaching your terms you can be taken in front of any judge to deal with it but the recommendation is that you should be taken back before the judge that sentences you and I have noted that the authorities in this jurisdiction seem to note that I say that and a lot of the breaches of my orders come back to me.

And I am aware of the other thing that the Supreme Court of Canada said and that is that there are many penalties that are available for somebody that breaches a conditional sentence order but the one that should be considered first, not necessarily imposed but at least considered first, is to simply convert what is left of the conditional sentence order to jail so in your case that could be a long time in jail. Do you understand all that? THOMAS GERNON: Yes, Your Honour. THE COURT: Okay.

And I am pointing all of this out to you because I am going to assume that when you leave here today there may be a certain sense of relief that you are not going to jail and you are looking and thinking, “ Okay, I’ve survived house arrest for a year so far, I can do it for another 18 months ”. I am just recognizing the fact that 18 months is a long time. At some point the walls start to feel a lot closer. I read in the newspaper all the time that the courts are soft on people, placing them under house arrest which is easy.

Anybody that talks in terms of it being easy has never had to live up to those rules as far as I am concerned. But I do not want you to get to the point where you start looking and going, “ I need some dog food for my dog, the store is just five minutes away. Surely the Judge did not mean that I cannot run out and get that ”. Well unless your mother is there to go with you, sir, I mean exactly that. The order is that you cannot go out unless you meet one of the exceptions that is set out in there. Do you understand that? THOMAS GERNON: Yes, Your Honour. THE COURT: Okay.

I will give you four months to pay the surcharges. MS. ANDERSON: Thank you. Your Honour, may I just ask for one consideration. The aspect of religious services had been deleted at paragraph four, page two of the draft…. THE COURT: Do you want it back in? MS. ANDERSON: And I understand they do attend church, is that right? THOMAS GERNON: Yeah. MS. ANDERSON: So if the religious service could be included as one of the exceptions that would be helpful.

MS. KERR: This is a regularly scheduled…. THOMAS GERNON: Yeah, it’s every Sunday. THE COURT: Do you go with your mother? THOMAS GERNON: Yes, I go with my mother. It’s also 32 plus so there’s no kids. THE COURT: I will include the religious services but he would have been exempted by being with his mother but this way if something happens that she cannot go to church he still can. MS. ANDERSON: Thank you very much. THE COURT: I only excluded it because it was crossed out on what was given to me. MS. ANDERSON: I realize that, thank you, sir.

THE COURT: So, we will go back and with respect to your house arrest, you are allowed out of your residence for purposes of travelling to and from and attending religious services but you will be subject to the requirement that you inform your supervisor in advance of that as part of your schedule. THOMAS GERNON: Okay. I just have a quick question, Your Honour. Does that mean do I have to have someone with me to go to medical appointments? THE COURT: No. THOMAS GERNON: Okay. MS. KERR: And, Your Honour, I wonder if I can make a request, sir, that the report from Dr.

Pearce that’s been made Exhibit 2, if that could be made available to both the conditional sentence supervisor…. THE COURT: And the probation officer? MS. KERR: And the probation officer and I was going to request as well Dr. Woodside. MS. ANDERSON: I agree, I think it would be…. THE COURT: Okay, I will make an order authorizing the release of those documents to the supervisor, probation officer and Dr. Woodside. Anything else? MS. KERR: No, thank you, sir. MS. ANDERSON: Thank you, no. I’ll have him wait either in the court or just outside in the hallway. CLERK REGISTRAR: Just outside room 207. MS.

ANDERSON: Okay, thank you very much. Thank you Madam Crown, thank you, Your Honour. THOMAS GERNON: Thank you, Your Honour. THE COURT: You are welcome. ....WHEREUPON THESE PROCEEDINGS CONCLUDED. FORM 2 Certificate of Transcript Evidence Act , Subsection 5(2) I, EVA ANDERSON , certify that this document is a true and accurate transcription of the recording of R. v. GERNON, Thomas in the Ontario Court of Justice held at 491 Steeles Avenue East, Milton, Ontario taken from Recording No. 1211-16-20160419-085644-6- HARRISDAV.dcr which has been certified in Form 1.

May 11, 2016 _____ (Date) (Signature of Authorized Person)