R. v. Lazar, 2019 ONCJ 185

CITATION: R. v. Lazar , 2019 ONCJ 185 DATE: January 15, 2019 Information No. 16-3633 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. REUBEN LAZAR R E A S O N S F O R S E N T E N C E BEFORE THE HONOURABLE JUSTICE S. LATIMER on JANUARY 15, 2019 at 85 FREDERICK STREET, KITCHENER, ONTARIO INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO 486.4(4) AND 517(1) of the Criminal Code of Canada

APPEARANCES : Ms. B. Thomas Counsel for the Crown Mr. B. Smart Counsel for Reuben Lazar TUESDAY, JANUARY 15, 2019: LATIMER, J, (Orally): Introduction: I found Reuben Lazar guilty of sexually touching a 15-year-old boy, K.N., a former student, his son’s friend and most significantly, a young man he was supposed to mentor through difficult times. The sexual act proven involves Mr. Lazar unbuttoning K.N. pants and touching his penis in a rubbing fashion while telling him this touching would “help him play the game better”. We’ve completed a sentence hearing where I’ve heard submission in relation to Mr.

Lazar’s background, the impact of his offending on K.N., and sentences other judges have imposed in what has been submitted to be similar circumstances. The Crown is seeking a one-year jail sentence, the defence a sentence beginning at 14 days jail. In these reasons I intend to summarize the relevant facts and applicable legal principles and then apply those principles to the facts of this case in aid of coming to an appropriate sentence. Factual

summary: The facts as I have found them are contained in my Reasons for Judgment delivered on December 14, 2018. What follows are a

summary of those findings. Mr. Lazar originally met K.N. when he was vice principal at McGregor Public School, which K.N. attended for a time as a student. Mr. Lazar was also an active member of his local church and was a leader for group activities involving young people associated with the church. One of those young people was K.N. Reuben Lazar and K.N. developed a mentor/mentee relationship in the years that followed. This relationship began at the request of K.N.’s father, who knew Mr. Lazar and knew of his connection through the church and the school to his son.

K.N. was struggling at home due to his parent’s recent separation and his father asked Mr. Lazar if he could talk to K.N. and help him through this difficult situation. In K.N.’s words, Reuben Lazar became like a father figure to him in the time that followed. In the years that followed Mr. Lazar and K.N. became close. They had frequent contact through the church youth group that Mr. Lazar led. When K.N. left McGregor Public School for high school, he would often return to visit Mr. Lazar in his office. He also became, at Mr. Lazar’s urging, friends with his similarly aged son Zach.

The voluminous electronic messages that were filed at trial demonstrate significant subsequent contact between the two of them on a variety of topics, many of them including music, a shared interest and K.N.’s ongoing feelings of anxiety and self-worth. And, as I previously ruled, there were messages exchanged that related to the fallout from Mr. Lazar’s decision one morning to sexual touch K.N. in the manner described above.

It was also common for Reuben Lazar and K.N. to meet up at local coffee shops and discuss K.N.’s life, how it was going, what he was doing, musical interests and any other areas of concern that he was experiencing. It is clear to me that Mr. Lazar was genuinely interested and cared about K.N.’s mental health and happiness. I accept that through much of their contact he was genuinely trying to assist K.N. in a manner befitting someone of his station in our community; a leader committed to the betterment of young people through roles in the church and the school system.

For a time, Reuben Lazar honoured the trust placed in him by K.N.’s father and the community. What happened however, was that in March 2014 that trust was broken. As I described in my Reasons for Judgment, I found that Mr. Lazar took advantage in the moment of an opportunity that presented itself to make a sexual overture towards K.N. Specifically, K.N. had been sleeping over at the Lazar residence with Zach and other young people. K.N. awoke early and went to the bathroom. In so doing, he noticed Mr. Lazar awake and lying on his bed in a t-shirt and boxer shorts playing on his laptop.

He entered the room and sat on the bed beside him. They discussed the game, which eventually K.N. started playing. While this was happening Mr. Lazar reached over and undid K.N.’s belt and pants, spreading the fly area apart and touched K.N.’s penis in a rubbing motion over top of his underwear. Mr. Lazar told K.N. “you play the game better when I do this”. K.N.’s penis became erect. The touching continued for a number of minutes. K.N. testified that he knew that what was happening was wrong, but he had a hard time saying anything in the moment.

Finally, when he could not handle the situation any further, he got up off the bed and went into the washroom. He subsequently returned to the bedroom and received a hug from Mr. Lazar, who said that he was “fucked up”. K.N. returned to his still sleeping friends, but had difficulty falling asleep. He said he felt paralyzed and had difficulty processing events. “What just happened. My best friend’s dad molested me, but I can’t tell anybody”. He further testified that he did not believe he could tell anyone because speaking of Mr. Lazar “I had a loss of trust in him at this point.

He is one of the few people I would cry in front of and the only person I have that kind of trust with and I guess I didn’t want to lose that father figure piece of it; person of guidance and trust”. K.N. did not tell anyone what had happened, at least, not until much later. As the Facebook messages depict, he did reach out to Mr. Lazar for answers beginning on the day following the incident, but never received a satisfactory explanation.

Relevant legal principles: The fundamental purpose of sentencing is set out in the Criminal Code , is to protect society and contribute to respect for the law in the maintenance of a just peaceful and safe society; see

section 718 of the Criminal Code . That purpose is realized through the imposition of just sanctions that serve one or more of the traditional sentencing objectives. These objectives include denunciation, general and specific deterrence, separation of offenders, rehabilitation, reparation to victims and promoting a sense of responsibility in offenders and an acknowledgement of the harm done to victims in the community; see

section 718(

a) through (f). The Criminal Code also sets out a

number of principles meant to guide judges in imposing sentence. The fundamental principle is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender; see

section 718.1 . Proportionality requires that a sentence be tailored to the circumstances of an offence and the offender; see Regina and Lacasse, 2015 SCC 64 paragraphs 12 , 53 and

Section 718.2 (

b) of the Criminal Code states that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. While no two cases are identical, it is often the case that different cases share similar features or characteristics. In this particular sentencing, each counsel has provided me with three cases that they submit contain similar character​- istics that should persuade me to ultimately impose something approaching their recom​mended sentences. While I’ve reviewed all of these cases, I would only expressly refer to a few. In Regina v.

T.D. 2011 ONCJ 106 , Justice Brown of the Ontario Court imposed a 14- day jail sentence for a father who committed what was termed an opportunistic and relatively brief singular assault on his 15-year-old daughter. One evening after tucking her into bed, he got under the blankets with her and, believing she had fallen asleep, touched her breast and reached into her underwear and fondled her buttocks.

The offender plead guilty and provided, among other materials, a psychiatric risk assessment stating that his conduct “appears to be an isolated and exceptional circum​stance that has an extremely low likelihood of repetition in any form”. In Regina v. L.W. 2018 ONCJ 399 , Justice Rose of the Ontario Court imposed a 90-day sentence after trial on an 85-year-old violin teacher who kissed his pre-teen student on multiple occasions and discussed performing oral sex on her.

After considering a variety of mitigating features and the caselaw surrounding elderly offenders, Justice Rose imposed the maximum jail sentence allowable for an intermittent sentence, which is 90-days. In Regina v. M.L. 2016 ONSC 7082 , Justice Linhares de Sousa sentenced a 56-year-old caregiver to 9 months jail in the following circumstances. While in bed watching a movie together, he gave his 15-year-old charge a massage, supposedly to relax her, which he had done before without incident. They both became topless and smoked marijuana.

The accused then touched the victim for a sexual purpose by touching and squeezing her breasts. When she told him to stop, he did, and they continued to sleep together in the bed for the night without further incident. M.L. was found guilty after trial and had no prior criminal record. The M.L. decision is notable for a number of reasons. First, it is one of several decisions from the Superior Court of Justice finding that the mandatory minimum sentence under

section 151, which is the sexual interference offence, is unconstitutional. This means that while in this proceeding the crown has proceeded by indictment, there is no mandatory minimum sentence I have to impose. Second, Justice Linhares de Sousa conducts a fulsome examination of sexual inter​ference sentencing principles and prior cases related to the external sexual touching of children. This judgment is of assistance to me in considering the present case. I have also benefited from a review of another Superior Court case that follows M.L., Regina v. Hussein, 2017 ONSC 4202 .

At paragraph 35 of Hussein, Justice Code writes, referring to the caselaw canvassed in M.L. “in the most mitigated cases, sentences of 90-days imprisonment were imposed. In the more aggravated cases, especially those involving breaches of trust in some repetition, sentences between six months and 15 months were imposed”. I accept the Superior Court’s guidance that a rough range of sentence has emerged for this offence, in roughly similar circumstances, of six to 15 months in custody. Finally, I have been provided my own judgment from last year in a case called M.M., 2018 ONCJ 512 .

I will say that while the facts differ, I adopt the general statements I made in that case regarding the surrounding principles drawn from the appellate cases with regard to the sexual abuse of children. Analysis: Returning to my analysis of Mr. Lazar’s case, in determining an appropriate sentence, I have to consider relevant aggravating or mitigating circum​stances relating to him or his offence; see the code 718.2(a). Taking proper account of these factors is essential to evaluating the gravity of an offence and the degree of responsibility of an offender.

It is by giving due regard to these factors that a sentencing judge ensures a proportionate sentence is imposed. I therefore turn to the aggravating and mitigating factors. In this case the following are particularly relevant to my analysis. 1) The Criminal Code directs that specific aspects of this case constitute aggravating facts. First, the offence involves the abuse of a person under the age of 18 years; see 718.2(

a) ii.1. Second, Mr. Lazar in committing the offence abused a position of trust in relation to K.N. It was Mr. Lazar’s status in the community and his role in the church and in the education system that caused K.N.’s father to reach out to him and ask for assistance. He accepted that role and acted as a mentor, and in K.N.’s words, “a father figure” towards a young man whom he knew had significant issues relating to anxiety, depression and other mental health concerns. He knew K.N. relied on him for assistance, and despite that awareness, he chose to touch him in the manner proven. This is a significant aggravating feature of the case in my view: see 718.2(

a) iii. 2)

Section 718.01 of the Code states that when a court imposes a sentence for an offence that involves the abuse of a person under the age of 18-years, it shall give primary consideration to the objective of denunciation and deterrence of such conduct. This statutory instruction is consistent with the binding authorities from the appellate courts; see Regina v. D.D., Regina v. Woodward, Regina v. W.L.F. In W.L.F, the Supreme Court adopts the following language at paragraph 31 “I do start from the premise that sexual assault of a child is a crime that is abhorrent to Canadian society.

Society’s condemnation of those who commit such offences much be communicated in the clearest of terms. As to moral blame worthiness, the use of a vulnerable child for the sexual gratification of an adult cannot be viewed as anything but a crime demonstrating the worst of intentions”. 3) With regard to the specific act proven, it was an external touching of K.N.’s penis through his underwear in circumstances that were not preplanned. It was an opportunistic act by Mr. Lazar. This is an important feature of the present case.

Additionally, in their submissions, both counsel, consistent with the authorities, focused on placing this act within the spectrum of child or adolescent sexual offending in coming to their respective sentence recommendations. Both noted the absence of features that exist in some other cases, such as fellatio or penetrative acts that have, in those cases, in the past occasioned lengthier penitentiary sentences.

It is important to focus in an individual case on the specific criminal act proven. 4) I note what was proven here was a single act as opposed to, in other cases, multiple acts extending over several months or years. While Mr. Lazar and K.N.’s relationship was ongoing, I am only sentencing him for a single criminal act. 5) Both counsel used the word “invasiveness” repeatedly in reference to the level of touching committed by Mr. Lazar as related to more egregious sexual violations found in other cases.

The word invasiveness in my view, however, speaks more directly to the level of psychological harm often caused by this type of offending. Sexual interference is inherently a crime of violence in the insidious way in which it has the potential to cause significant emotional and psychological harm. It is an evil crime; see Regina v. DAI 2012 SCC 5 paragraph one. One only has to look at K.N.’s impact statement to see the harm that has befallen him in the years following Mr. Lazar’s criminal act. While K.N.’s emotional difficulties preceded being molested by Mr.

Lazar, I am satisfied his actions contributed to, and exacerbated, those difficulties. Indeed, I do not lose sight of the fact that Mr. Lazar was fully aware of K.N.’s troubles when he made the conscious decision to touch him sexually. To borrow a phrase from tort law, Mr. Lazar must take his victim as he found him. I accept he knowingly touched, for a sexual purpose, a fragile 15-year-old boy, and in doing so, greatly increased his pain and struggles. K.N.’s impact statement speaks of depression, thoughts of suicide, panic attacks and addictive conduct that formed the foundation of his teenage years.

He engaged in physical self-harm, drugs and alcohol as a way to “not feel the pain of my emotions”. In Woodward and D.D., two of the decisions from the Court of Appeal I referred to earlier, Justice Moldaver, now in our

Supreme Court, wrote that in sentence hearings like this one, the focus of the hearing should be on the harm caused to the child by the offender’s conduct, and the life altering consequences that can, and often do follow from it. And “while there may have been a time years ago when offenders like the appellant could take refuge in the fact that little was known about the nature or extent of the damage caused by sexual abuse, that time has long since passed. Today that excuse no longer holds sway. The horrible consequences of child sexual abuse are only too well known”; Woodward, paragraph 76, D.D., paragraph 36.

While I am aware that the factual circumstances of these cases exceed the present facts, the discussion of the harm caused by sexual misconduct against children and adolescents, is in my view, applicable to the present circumstances. Sexual interference is a crime against the body, but also the spirit. The impact of Mr. Lazar’s conduct on K.N.’s emotional and psychological well-being is a significant aggravating factor in the present case; see

section 718.2 (iii.1) of the Code. 6) The character letters filed demonstrate Mr. Lazar’s otherwise good character. I accept that. I further accept that the fallout from these charges and my findings has been significant and has had a significant effect on him. He has lost a great deal: his career, contact with his family and his repute in the community. I accept that this reality demonstrates a reduced need for my sentence to focus on specific deterrence. I have not been convinced however, that the stresses related to Mr.

Lazar’s sexual orientation are relevant to the decision I have to make in this case. 7) I accept that Mr. Lazar’s intelligence and education make him a strong candidate for rehabilitation, and that the loss of his teaching licence means he will not in the future be in close contact with children of a similar age as K.N. The ancillary orders I will make in this case will also assist in protecting this segment of the population. In conclusion, I am sentencing Mr. Lazar for a single opportunistic sexual act that caused profound harm to a vulnerable 15-year-old adolescent boy. Mr.

Lazar was acutely aware of how vulnerable K.N. was, and in committing this offence breached a significant trust owed to him. My primary focus in this sentencing is on the harm caused to K.N., on denunciating Mr. Lazar’s actions, and on deterring anyone else to the extent possible, from committing a similar act. I consider specific deterrence a lesser concern here. I do not lose sight of rehabilitation, but the Criminal Code and the higher authorities focus my attention more prominently on other sentencing principles.

I note that rehabilitative options exist and will be made available in the reformatory and during the subsequent period of probation. For all of these reasons, in my view, the appropriate length of custody is 10 months jail. Disposition: There will be a conditional stay on the sexual assault count. On the sexual interference count, I am imposing 10 months jail. There will be a further 18-month period of probation with terms that include reporting, no contact with K.N., not to attend within 50 meters of any place he lives, works, goes to school or Mr.

Lazar knows him to be; a counselling term; a DNA order is mandatory, as is a 20-year SOIRA order. I’m making a 161 order only to the extent of subsection (

b) for 20-years. I’m not satisfied the other components of

section 161 are required. That is my ruling. MR. SMART: Your Honour, will there be any credit for time that’s already been spent in custody, there’s six days. THE COURT: There should be yes, I wasn’t advised of that Mr. Smart, or at least I don’t recall. Six days, four days enhanced to six. Credit for four days, four days pre-trial custody credited on a 1 to 1.5 basis to six; remaining sentence 294 days. I’m going to take a moment to obtain the exhibits and I’ll come back, and I’ll sign the paperwork. CLERK REGISTRAR: Your Honour, the reporting term, is it within… THE COURT: 48 hours after release from custody.

MR. THOMAS: I apologize Your Honour, did Your Honour address the 109 weapons prohibition? THE COURT: It’s mandatory, is it not? MR. THOMAS: Yes. THE COURT: There will be a 109 order, 10-years for the first category, life for the second. Be back in a moment.