Her Majesty the Queen - v. -, 2012 SKPC 49

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 049 Date: March 30, 2012 Information: 24335371 Location: Moose Jaw, Saskatchewan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Leopold Therrien Appearing: Mr. Rob Parker For the Crown Mr. Jeff Deagle For the Accused DECISION M.T. GORDON , J [ 1 ] Leopold Therrien is charged as follows: that between January 1, 1983 and December 31, 1991, at Willow Bunch,

Saskatchewan, and Regina, Saskatchewan, and Winnipeg, Manitoba, did commit sexual assaults on Leanne Eger contrary to provisionsof the Criminal Code. [2] And further, that between January 1, 1989 and December 31, 1991, at Willow Bunch, Saskatchewan and Winnipeg,Manitoba, did commit sexual assaults on Nicole Eger, contrary to provisions of the Criminal Code. [3] Mr. Therrien, with the advice of counsel, elected to be tried in this Court and entered guilty pleas on August 10, 2011.

APre-Sentence Report and Electronic Monitoring Assessment was ordered and sentencing was adjourned to November 9, 2011, and thento November 23, 2011. Counsel advised at that time that there was a significant divergence on some of the facts. The Crown requested asentencing hearing pursuant to section 724(3)(e). The accused agreed. This decision deals only with my findings as a result of thissentencing hearing. [4] In R. v.

Gardiner (1982), (SCC), 68 C.C.C. (2d) 477, the Supreme Court of Canada stated that: It should also be recalled that a plea of guilty, in itself, carries with it an admission of the essential legal ingredients of the offenceadmitted by the plea, and no more. Beyond that any facts relied upon by the Crown in aggravation must be established by the Crown. Ifundisputed, the procedure can be very informal.

If the facts are contested the issue should be resolved by ordinary legal principlesgoverning criminal proceedings including resolving relevant doubt in favour of the offender. [5] A hearing to resolve disputed sentencing facts is commonly referred to as a “Gardiner Hearing”. The procedure set out inGardiner is now codified into section 742(3) of the Criminal Code. [6] In R. v. Poorman, (SK CA), [1991] S.J. No. 274, 66 C.C.C. (3d) 82, the Saskatchewan Court of Appealadopted the direction in R. v. Boulet, (SK CA), 85 Sask.

R. 93, which is now stated in section 724(3) that where thereis a substantial conflict in the facts, the Court must hold a formal sentencing hearing with the onus on the Crown to prove the aggravatingfacts beyond a reasonable doubt. [7] This procedure is quoted with approval in R. v. Malnowski, 2007 SKCA 33 and R. v.

Tonido-Yuiiti, 2010 SKCA 81. [8] There are three aggravating factors that the Crown asks this Court to find, namely: 1) that the sexual assaults werenumerous, 2) that the accused touched the victims directly on their skin and not just over their clothing, and 3) that there was digitalpenetration by the accused of both victims. [9] As stated above, the law is clear, that the Crown must prove each of these aggravating factors beyond a reasonable doubt. [10] The Crown called both victims to testify, namely Leanne Eger and Nicole Eger.

The Defence called Leopold Therrien totestify. [11] The first aggravating factor the Crown asks this Court to find is the frequency of the assaults. [12] In his closing submissions, counsel for Mr. Therrien stated there was no real issue with the frequency of the assaults. [13] However, in cross-examination it was noted Defence counsel suggested to the victims that the assaults did not take place asoften as each of them related. [14] Leanne Eger testified the assaults started when she was four years old and living in Regina, and ended when she was eleven ortwelve years old. She recounted incidents at Mr.

Therrien’s home in Willow Bunch and that they occurred more than once per visit.

She estimated the assaults occurred hundreds of times. She does not remember ever being alone with Mr. Therrien without this conduct occurring. [ 15 ] Nicole Eger testified that she and her sister would visit Mr. Therrien at Christmas, weekends, and summer holidays. Nicole could not say the frequency of the assault but she cannot recall times with Mr. Therrien when these incidents did not occur. [ 16 ] Mr. Therrien acknowledged touching both victims at various locations, quite a few times. On cross-examination he agreed it was over a long period of time, five to six years.

He acknowledged that it would happen more than once a day, whenever he saw the girls. He could not say the girls were wrong. [ 17 ] From all of the evidence, I am satisfied beyond a reasonable doubt that both victims were sexually assaulted by Mr. Therrien on numerous occasions. I am satisfied that these sexual assaults were a common occurrence on every occasion Mr. Therrien was in the company of the girls. [ 18 ] Therefore, it is clear that Mr. Therrien’s conduct was not an isolated incident or even restricted to a few occasions.

I find that the sexual assaults occurred on every occasion the victims were in his presence at Willow Bunch, Regina and Winnipeg. [ 19 ] The Crown asks the Court to find that Mr. Therrien touched the victims under their clothing. [ 20 ] Nicole Eger testified about an incident in Winnipeg when Mr. Therrien touched her inside her underpants. She was downstairs playing games on the computer when Mr. Therrien put his hands inside her pants and rubbed her clitoris. Nicole testified that Mr. Therrien took her hand as they walked to the couch where he again touched her under her underpants.

She was ten or eleven years old at the time. [ 21 ] Nicole testified that at each incident Mr. Therrien would start with putting a quick hand down her pants. She recalled being at Mr. Therrien’s home in the bedroom behind the kitchen. Again, Mr. Therrien put his hand underneath her underwear. Nicole testified that it was always the same, whether she was with Mr. Therrien in the cellar, in the bedroom or wherever. [ 22 ] Leanne Eger testified that Mr. Therrien had direct contact with her. She provided details of several incidents when this occurred. She recalled an incident in Regina when she was four years old.

She was wearing a coral nightgown with panties underneath. He touched her over top of her panties and then had direct skin on skin contact with her vagina. [ 23 ] Leanne testified that most of the incidents occurred at Mr. Therrien’s home in Willow Bunch. She recalled a time in the laundry area, which was somewhat private, when Mr. Therrien was “....kissing in her mouth”, hand up her shirt fondling her breasts, underneath her underwear. Mr. Therrien would make her touch, skin on skin, his erect penis. [ 24 ] Leanne recalled another time was at the golf course where Mr.

Therrien grabbed her breasts and slid his hands down the front of her pants. [ 25 ] Leanne estimated that approximately half of the incidents involved direct skin on skin contact with Mr. Therrien. [ 26 ] Mr. Therrien testified, admitting that he touched both of the victims quite a few times but always over top of their clothes. He denied or did not recall the specific incidents that Nicole and Leanne described.

He testified he “...never did it as she described”, the golf course incident never happened; he never exposed his penis. [ 27 ] On cross-examination, when pressed by the Crown, he says the direct skin contact might have happened. When confronted with the witness statement he provided to Cst. Rick Hutchinson of the Coronach RCMP (voluntarily admitted), he acknowledged he replied that he had touched the girls under their clothing.

[ 28 ] He agreed he touched Leanne’s breasts under her clothes. [ 29 ] Again, when questioned further by the Crown, Mr. Therrien admitted he could not remember all the times. He has no specific recollection and can’t say for sure he did not touch the girls directly. Again, in his statement to the police he said: “yeah, I touched her bottom - once - her vagina”. [ 30 ] Mr. Therrien cannot remember. I accept this is due to the passage of time, the fact he was the abuser and consciously or unconsciously he wants to put these incidents out of his mind.

It is safe to say that is a normal human reaction. [ 31 ] When cross-examined as to specific incidents and his statement, Mr. Therrien admitted that he could not recall exactly, that it might have happened or it did happen. Mr. Therrien suggested that his statement might be different from his testimony as he has had more time to think about things. In my view, that is exactly what has happened. Over time Mr.

Therrien has softened the more disgusting aspects of his behaviour. [ 32 ] Finally, in my view, it just does not make any sense that there would not be fondling or touching directly on the victims’ skin given the number of incidents and that he slipped his hand under their top or down their pants. [ 33 ] Again, I am satisfied beyond a reasonable doubt that Mr. Therrien touched Nicole and Leanne under their clothing on many occasions. The victims have testified and provided some detail with respect to these instances.

The victims testified where the incidents occurred and that he felt them directly on their breasts, and vagina and bottoms. [ 34 ] The final issue for the Court to determine is whether there was digital penetration. Wikipedia defines digital penetration as vaginal fingering of the vagina and may involve one or more fingers. [ 35 ] Again, a review of the evidence is that both victims testified on at least one occasion this occurred. Leanne testified that on the incident that I will refer to as the basement/cold room incident, Mr.

Therrien, under her pants, put his hand inside her underwear and put his fingers inside her. Again, in the laundry room area, she testified he had his finger inside her. Leanne described that Mr. Therrien would undo his pants, expose his penis, have her touch his penis, all the while breathing heavy. Then he would finish, do up his clothes and walk away. She also described that he would kiss her hard on the mouth trying to get his tongue in her mouth. [ 36 ] On cross-examination she acknowledged that she had never consulted a medical doctor as a result of Mr. Therrien’s actions.

However, she recalled being taken to a doctor in Regina when she was four or five years old. She thought it was something to do with her vagina. Leanne also recalled laying on the bathroom floor and her mother putting cornstarch on her vaginal area. [ 37 ] Nicole Eger testified as to an incident in the Therrien home in Willow Bunch, in a bedroom behind the kitchen. This victim stated that Mr. Therrien had his hands underneath her underwear, rubbing her. He also put his finger inside her. This occurred many times. It was always the same. Mr.

Therrien would put his hands inside her clothes, rub and touch her breasts, and rub his erect penis against her. [ 38 ] On cross-examination she stated that Mr. Therrien would rub her fast and hard and repeated that he was inside her. When she had her first sexual experience, she recalled this clearly. [ 39 ] Mr. Therrien denied that digital penetration occurred. He also denied that he ever had an erection or that he exposed his penis. However, in cross-examination, as with the other factors, Mr. Therrien really is unable to recall with any certainty many details.

He agreed that the voluntary statement he gave to the police shortly after his arrest is accurate. In that statement he admitted to touching Leanne underneath her clothes. [ 40 ] The Crown submits the Court must consider the issue of reliability of the witnesses. Both witnesses testified and provided sufficient detail such as location, what they were wearing, or what was going on. There were inconsistencies which is not surprising

given the age difference of the victims and their many years of silence. As well, it shows the victims did not get together to ensure everydetail was the same. [41] The Crown argues that the victims do, however, tell the same story, which is repeated sexual abuse by Mr. Therrien whichoccurred over a number of years. The Crown notes that both victims testified that there was digital penetration. [42] The Crown concluded by noting that Mr. Therrien denied the egregious portions of his conduct and only admitted the barefacts to justify the guilty pleas. The Crown submits that Mr.

Therrien is not being forthright and in the final analysis the Court ought notto believe his denials. [43] The Defence submits there is insufficient evidence of digital penetration. The Defence argues that there was only generalevidence given by the victims describing Mr. Therrien rubbing their vagina area. For example, Nicole testified that Mr. Therrien slid hishand down her pants and rubbed her. As well, Leanne also testified in general terms and her evidence does not coincide with Nicole’s. [44] There is no medical evidence and no corroboration of digital penetration. [45] Mr.

Therrien testified that it did not happen. Given the generalities of the victims’ evidence on this aspect, it is argued thatMr. Therrien cannot be expected to recall a specific event. [46] There is no evidence this happened frequently. The Defence argues that due to the fraility of memory the Court has to becareful not to make assumptions and fill in the gaps. In conclusion, the Defence submits the Court should have a reasonable doubtconcerning digital penetration. [47] The determination of credibility does not involve the Court opting for one version of events over another.

The Crown mustprove its evidence is credible. There is no onus on the accused. Even if the Court prefers the evidence of the Crown, it still mustconsider whether the evidence of the accused raises a reasonable doubt. [48] The test is well known and set out by the Court of Appeal in R. v. McKenzie (1996), (SK CA), 141 Sask.R. 221 (Sask. C.A.). [49] After considering all of the evidence and applying the McKenzie analysis, I do not find the accused credible.

Even accountingfor the passage of time, and the difficulties with recalling events of many years ago, I do not accept the accused’s denial that there wasno digital penetration. The evidence of the victims is sufficiently credible to prove beyond a reasonable doubt that digital penetrationoccurred. I accept that both victims described only a couple of incidents when this occurred. However, the test is not the number oftimes digital penetration occurred.

The victims have no doubt recalled the incidents of digital penetration as this more severe abusewould stand out from the other occasions. [50] In my view, this finding is supported by the rest of the evidence. Each victim described in general terms the abuse inflicted byMr. Therrien and then provided examples and details of specific occasions. The evidence establishes that the abuse occurred overseveral years, many times. For example, Nicole could not say the frequency of the above, but does not recall it ever not happening. Leanne provided more detailed descriptions of various incidents of abuse.

She testified that the abuse occurred more than once per visitand that the accused took every chance he could to get more. [51] I conclude that the accused got bolder as time passed and took more liberties and chances. Mr. Therrien may well havestarted by feeling and rubbing the victims over their clothing when they were sitting on his knee. As the victims got a little older and Mr.Therrien a little bolder, he went to feeling and rubbing the girls under their clothing, and kissing them hard on the mouth. His penisbecame erect. He breathed heavily. He tried to dry hump Nicole. He was always calm and in control.

Mr. Therrien admitted on cross-examination that it is possible he was sexually aroused. [52] I believe Mr. Therrien, when he testified that he cannot remember these incidents. He may well have repressed theseincidents. Considering the allegations now, as a man in his eighties, he of course cannot or will not believe he would have done such

things. [ 53 ] In

summary, I find that the Crown has proved beyond a reasonable doubt the three facts that I find to be aggravating factors pursuant to section 724(3) (

e) of the Criminal Code . Dated at Moose Jaw, Saskatchewan, this 30 th day of March, 2012. __________________________________________ M.T. Gordon, J