Her Majesty the Queen - v. -, 2015 SKPC 69

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 069 Date: May 6, 2015 Information: 24521432 Location: Swift Current _____________________________________________________________________________ Between: Her Majesty the Queen - and - Ryan R. Chamberlin Appearing: Steve Kritzer For the Crown Merv Shaw, Q.C. For the Accused Note: Pursuant to s. 486(4) of the Criminal Code , the Court made an order directing that the identity of the complainant or a witness, and any information that could disclose the identity of the complainant or witness, shall not be published in any document or broadcast in any way. SENTENCING DECISION K. BAZIN , J

[ 1 ] This matter involves the sexual assault and endangering morals of four children by Mr. Chamberlin. The offences occur separately over a 22 year period. Three victims who were assaulted as children came forward to report their assaults and to support the child who recently came forward in February 2015, to report the sexual assaults on him by Mr. Chamberlin. All of the victims, and particularly the young child who came forward in February, have brought to light the predatory acts of Mr. Chamberlin. [ 2 ] In this matter, Mr.

Chamberlin has pled guilty to the following: Count #1 - between the 1 st day of September 1994 and the 30 th day of June 1995 at Swift Current, Saskatchewan commit a sexual assault on a child contrary to s. 271 of the Criminal Code . Count #2 - between the 1 st day of July 2000 and the 30 th day of August 2000 at Gravelbourg, Saskatchewan, did participate in sexual immorality, and thereby endanger the morals of the child contrary to s. 172(1) of the Criminal Code .

Count #3 - between the 15 th day of January 2009 and the 12 th day of September 2010 at Cabri, Saskatchewan did repeatedly commit sexual assaults on a child contrary to s. 271 of the Criminal Code . Count #7 - between the 1 st day of December 2014 and the 25 th day of February 2015 near Counsel, Saskatchewan did repeatedly commit a sexual assault on a child contrary to s. 271 of the Criminal Code . [ 3 ] In this matter the four charges that Mr. Chamberlin pleaded guilty to represent four children that were victimized.

The initial child coming forward, resulted in three other parties, who are now adults, coming forward and filing complaints in relation to their abuse by Mr. Chamberlin. [ 4 ] Count #1 is the initial offence occurring in Swift Current, Saskatchewan between September 1994 to the end of June 1995. At this time, Mr. Chamberlin is 18 to 19 years of age. The child victim was 14 years of age. This is not a trust relationship. Mr. Chamberlin and the child, who are four to five years apart at the time, meet in front of Mr. Chamberlin’s home as the child and his friend are out on their bicycles. [ 5 ] Mr.

Chamberlin befriended the child, and eventually brings alcohol and pornographic movies into the friendship as they hang out at his apartment. One evening however, as the child attempted to avoid sexual conduct with Mr. Chamberlin he pretended he was passed out. Mr. Chamberlin took the child’s hand and masturbated himself to ejaculation.

It is this action, without the consent of the 14 year old child that results in the one charge. [ 6 ] The age of consent was elevated from 14 to 16 years of age on May 1, 2008 and as such the Crown proceeded with the charges in relation to the incident when the child was pretending to be sleeping. [ 7 ] Count #2 is the second in time occurring in August 2000. At this time, Mr. Chamberlin is 24 years old, and the child victim is 14 years old. Mr. Chamberlin was dating the child’s sister and befriended the child, and they golfed and drove around in cars.

This was not a trust relationship. [ 8 ] There was inappropriate behavior by Mr. Chamberlin towards the child. The offence of participating in sexual immorality s. 172(1) of the Criminal Code arises from an incident where while playing pool, Mr. Chamberlin proposed a game where he and the child would play the game and see if they can play the game while their penises remained erect, which the child declined and did not participate. Mr. Chamberlin then fondles himself during the pool game. When done, Mr. Chamberlin puts a condom on his penis and masturbates inviting the child to masturbate on the sofa with him.

The child runs upstairs and locked himself in the washroom until Mr. Chamberlin left. The victim is now an adult and came forward to the police in 2015, out of concern for and support for the initial reporting child victim, after a public appeal to possible other victims of Mr. Chamberlin. [ 9 ] Count #3 involves a third child victim who came forward in March 2015, as a result of the initial charges laid against Mr. Chamberlin being made public. The child was assaulted between January 15, 2009 and September 12, 2010.

[ 10 ] Mr. Chamberlin who is 33 years of age in 2009 had known the 14 year old child victim and becomes his personal hockey coach. This is not a situation where Mr. Chamberlin is a team hockey coach, but he is in a trust relationship with the child because he is a paid personal hockey coach for him. [ 11 ] Mr. Chamberlin was alone with the child at the hockey arena after a practice. When they go to shower, Mr. Chamberlin talks to the child about penises and asked if he wanted to masturbate with him. He shows the child how to masturbate and the child masturbates with him.

This occurs four times in the spring. [ 12 ] In the summer of 2009, Mr. Chamberlin is coaching baseball in Cabri and the child victim is coached by him. On one incident Mr. Chamberlin, while the child is helping him load his vehicle, unzips the child’s pants and masturbates the child and then Mr. Chamberlin masturbates himself until he ejaculates. [ 13 ] When hockey starts up again in the fall of 2010, Mr. Chamberlin again provides paid personal coaching to the child and the incidents start again. Mr. Chamberlin masturbates the child as well as himself.

These incidents occur at the hockey rink when they are alone. [ 14 ] The abuse advances to where Mr. Chamberlin manipulates the child to let him perform oral sex on the child, and the child to perform oral sex on Mr. Chamberlain. In the spring of 2011, the child quits hockey and stops talking to Mr. Chamberlain and the assaults end. [ 15 ] The fourth charge that Mr. Chamberlin has pled guilty to, being Count #7 on the information, and being the most recent in time takes place between December 1, 2014 and February 25, 2015 at or near Consul, Saskatchewan. Mr.

Chamberlin is now 38-39 years old and the child is 13 years old at the time of committing the offences. [ 16 ] This is a trust relationship as Mr. Chamberlin is again a personal privately paid hockey coach to the child. He is not the coach of the child’s hockey team in the child’s home town. The mother of the child in her victim impact statement indicated that Mr. Chamberlin comes into contact with the child and herself when the child attended a Swift Current Minor Hockey AA camp, of which I understood Mr. Chamberlin was a part of. The child does not make the team, and Mr.

Chamberlin talks to the mother and child after the camp about private coaching. [ 17 ] There are approximate six incidences as to the child, which start while the child is with Mr. Chamberlin driving to Consul. Mr. Chamberlin holds the child’s hand, and starts to reach over and rub the child’s stomach and pelvic area under the child’s clothes. At the hockey arena, Mr. Chamberlin would take the child and sit him across his lap, rocking side to side, rubbing the child’s stomach and moving his hand under the child’s shirt and under his belt and looking at the child’s underwear and penis. Mr.

Chamberlin’s assaults advance to where while driving to practice he begins rubbing the child’s stomach and groin area and on the second to last trip, started stroking the child’s penis. On the last trip, Mr. Chamberlin pulled over on the road and undid the child’s pants and rubbed the child’s penis and testicles. Mr. Chamberlin took out his own erect penis and began masturbating in front of the child, he grabbed the child’s hand forcing him to touch Mr. Chamberlin’s penis, wherein the child pulled away. Mr.

Chamberlin continued to masturbate to the point of ejaculation. [ 18 ] The Crown classifies this as a major sexual assault. [ 19 ] The defence does not take issue with the facts as outlined by the Crown, or as set out in the victim impact statements. [ 20 ] The effect of the assaults upon the children and their families were highlighted in the victim impact statements, filed on behalf of two of the victims. One child talks about feeling lied to, cheated, misled and confused. He feels a general lack of trust about adults, isolated and bugged by peers, over being the victim.

He suffers from a lack of focus on school and interests, lack of motivation, and nightmares. Most telling of the effects of the sexual assaults is that he relates the loss of one’s childhood and the chance to be a kid again. [ 21 ] One victim who is now an adult, talked about the loss of dignity, self-respect and the feeling of hopelessness at the time of the assaults. This party had thought about suicide several times, and the fear that people will find out what had happened to him. He also lived in fear of running into Mr. Chamberlin again.

[22] The Crown and the defence put forward to the Court, by agreement, a joint submission for the following sentence: Count #1 - 6 months jail, served consecutively to any other sentence. Count #2 - 6 months custody, served consecutively to any other sentence. Count #3 - a major sexual assault, two years custody, served consecutively to any other sentence.

Count #7 - a major sexual assault, two years custody, served consecutively to any other sentence. [23] The practical effect of the sentences being proposed in the joint submission, being consecutive, would total a sentence of fiveyears imprisonment. [24] As indicated, the Crown and the defence have reached an agreement as to the proposed sentence of consecutive sentences forthe four charges totaling a sentence of five years.

The Court is not bound by the agreement as to sentencing reached by the partiesresulting in a joint submission, but the Court is not free to simply ignore the agreement and sentence as if there was no agreementreached as to sentencing between the parties. Joint Submissions [25] The case of R v Omoth, 2011 SKCA 42 provides a recent commentary on the law relating to joint submissions,which follows the settled law previously enumerated in R v Webster, 2001 SKCA 72 commencing at paragraph 15: The Nature of Joint Submissions [15] In assessing Mr.

Omoth’s argument, it is useful to begin by looking more closely at the nature of joint submissions. They havesometimes been subject to criticism but, at this point, are clearly an established and important feature of the Canadian sentencing system. [16] A disposition of charges following plea discussions is generally recognized as serving a number of useful ends including: (a)resolving charges promptly, (

b) avoiding the negative impacts of pre-trial custody on offenders who are denied release pending trial, (c)protecting the public from those offenders who might commit crimes while on pre-trial release, (

d) preserving the public resourcesconsumed by trials, (

e) sparing victims the ordeal of giving evidence, (

f) allowing offenders to demonstrate an early and meaningfulsense of remorse, and (

g) providing the offender and the victim with measure of certainty about the ultimate resolution of thecharges. See: Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions(Toronto: Ontario Ministry of the Attorney General, 1993) at pp. 289-290. [17] However, joint submissions do not just happen. They are the product of an identifiable dynamic. Before the relevant discussionstake place, the offender bears the risk of conviction and a heavy sentence while the prosecutor bears the risk of a (sometimes costly) trialfollowed by an acquittal or a light sentence.

Once acted upon by the court, a joint submission puts in place a resolution of the chargesthat is acceptable to both the offender and the prosecutor. Thereafter, and of necessity, the offender must accept that a trial might haveresulted in an acquittal or a lighter sentence than the one actually imposed and the prosecutor must accept that the sentence might havebeen higher if the case had gone to trial.

This is the nature of the process. [18] In general terms, the negotiations or discussions underpinning a joint submission can only be effective if both the offender and theprosecutor are able to proceed with a considerable degree of confidence that their agreement will in fact be implemented. An offenderwill not undertake to plead guilty in exchange for a specific sentence if there is a meaningful risk that, in fact, a different and highersentence will be imposed.

The prospect of the elevated sentence will force the offender to reassess his or her personal risk-rewardcalculations and may cause him or her to proceed to trial in hope of receiving an acquittal or a more moderate sentence. In the same way,a prosecutor will be disinclined to agree to a sentencing arrangement if there is a meaningful risk that the offender will ultimately securea lighter sentence than the one agreed upon. Given a choice between the lighter sentence on the one hand, and the possibility of a trialand a heavier sentence on the other, a prosecutor will at least sometimes choose to proceed to trial.

Briefly put, a lack of predictability orconfidence as to the sentence ultimately imposed in the wake of a sentencing agreement will hamstring the plea discussion process. [19] This is why courts are very slow to reject joint submissions. As the Alberta Court of Appeal said in R. v.

C. (G.W.), 2000 ABCA 333, [2001] 5 W.W.R. 230 at para. 17, “[t]he certainty that is required to induce accused persons to waive their rights to a trial canonly be achieved in an atmosphere where the courts do not lightly interfere with a negotiated disposition that falls within or is very closeto the appropriate range for a given offence.” Similarly, the Manitoba Court of Appeal observed in R. v. Pashe (S.J.) (1995), (MB CA), 100 Man.

R. (2d) 61 at para. 11 that “[t]he bargaining process is undermined if the resulting compromiserecommendation is too readily rejected by the sentencing judge.” In keeping with these concerns, this Court has said on several occasionsthat a joint submission should not be rejected unless the sentence recommended is unfit or otherwise contrary to the public interest. See,for example, R. v. Kasakan, 2006 SKCA 14 , [2006] 8 W.W.R. 23 at para. 15; R. v. B.L., 2008 SKCA 122 , 314 Sask.

R. 276 at para. 6. Analysis [26] In this matter the Crown and defence, both senior and experienced counsel, have put forth a joint submission for sentence forMr. Chamberlin. The work on the joint submission can be seen in the guilty pleas as to four charges encompassing offences against thefour children that have come forward, while a stay of proceedings was entered as to six of the original 10 charges. [27] Of particular note in this case is that Mr.

Chamberlin’s early guilty plea, as a result of the agreement on a joint submission,even to the more historical offences, meant that the child, and the three adults who were abused as children, did not have to testify inCourt. [28] The question for the Court is whether the sentence, jointly agreed to and put forward to the Court for its acceptance, meets thetest of joint submissions in that the disposition falls within or is very close to the appropriate range for a given offence and is not unfit orotherwise contrary to the public interest. [29] The parties put forward and rely on the two recent cases of R v James (G.M.), 2013 MBCA 14 [James], being theManitoba Court of Appeal and R v Leroux, 2013 SKQB 438 [Leroux]. [30] It came to the courts attention on May 5th, 2015, that the Queens’s Bench decision in Leroux had been appealed and the Saskatchewan Court of Appeal rendered its decision in R. v.

Leroux 2015 SKCA 48 on May 4th,2015. Neither the Crown nor Defence intheir submissions indicated to the court that the QB decision in Leroux had been appealed. This is troubling in light of the reliance thatcouncil put on the QB decision in Leroux to support the joint submission. [31] In initial argument by council relying on the Queen’s Bench decision in Leroux, the proposed sentence for Mr. Chamberlinappeared to be on the higher end, considering that Mr. Leroux was convicted after trial, on nine counts involving seven children. Theassaults were from fondling to fellatio and anal intercourse.

In light of the Court of Appeal increasing Mr. Leroux’s sentence from threeyears imprisonment to eight years imprisonment, the sentence in the joint submission would fall on the lower end. However thesuggested sentence when compared to the Court of Appeal of Manitoba in James does fall into the higher end in light of the degree andnumber of assaults committed by Mr. James. [32] Council did argue that it is the principle of totality that was taken in consideration in coming to the five year total sentence forMr. Chamberlin.

Council argued the starting point for a major sexual assault against a child is three years, but in the joint submission Iunderstand that the imprisonment times put forth are more connected to coming to a total of five years, and not reflective of what theactual sentence would be if calculated on its own. The Crown did state that before the applying the totality principle the two majorsexual assaults would receive three years, not the two years as later broken down.

As such one should not look at the break down foreach offence as any precedent for sentencing for similar offences as the jail time allocated to each offence would, taken out of the contextof a joint submission, appear to be inappropriately low. [33] As to the principle of totality, if the matter had proceeded to trial and Mr.

Chamberlin had been found guilty on the chargeshe had pled guilty to, the principle of totality as referenced in the Court of Appeal’s decision in Leroux would have to be analyzed as setout in paragraph 80 and 81 and it is questionable if any reduction of imprisonment for the totality principle might arise. [34] Both Leroux decisions point out that Manitoba considers four years as the starting point for a major sexual assault whileSaskatchewan considers it to be three years. [35] In this matter the Crown categorizes and the defence agrees that Count #7 and Count #3 are major sexual assaults. [36] In James, the Manitoba Court of Appeal sentenced Mr.

James to five years’ incarceration, for sexually assaulting two childrenbeginning when they were 14 and 15 years of age. The assaults occurred on a repeated and frequent basis, resulting in hundreds of

incidents including masturbation and fellatio. [ 37 ] Mr. James had previously been sentenced in relation to two victims in 1997 out of Swift Current, Saskatchewan and received a jail sentence of 3½ years served concurrently based on a joint submission. [ 38 ] The Manitoba Court of Appeal decision in relation to Mr.

James is helpful as it sets out the law as it relates to concurrent and consecutive sentences for multiple offences, indicating that the principle of totality only comes into play when dealing with consecutive sentences. [ 39 ] The Manitoba Court of Appeal in James finds that but for the principle of totality; he would face a period of eight years in custody. The sentence imposed was five years total in respect to both charges. This sentence was not based on a joint submission. [ 40 ] In Leroux , Mr.

Leroux was in a position of trust, being a priest in a residential school, assaulting children between the ages of 13 and 15, and was found guilty of eight counts of indecent assault on males and two counts of gross indecency. The assaults involved fondling victims, oral sex and anal intercourse. Mr. Leroux continued to deny the offences and showed no remorse. [ 41 ] The Queen’s Bench Court calculated that on an individual basis, based on consecutive sentences, the total sentence would be 17 years served consecutively. The Court then, applying the totality principle, sentenced Mr.

Leroux to three years imprisonment. This was overturned on Appeal and the court of Appeal calculated that the sentences served consecutively would amount to 30 years imprisonment and then applying the principle of totality sentenced Mr. Leroux to 8 years imprisonment. [ 42 ] Mr. Chamberlin’s criminal record is that he had one prior conviction out of British Columbia in August of 1998 for a sexual assault upon a five year old child pursuant to s. 271 of the Criminal Code . He received a four month jail term and a three year probation order. [ 43 ] Counsel stated that in the circumstances, Mr.

Chamberlin accepts his punishment and that the early guilty plea was one way that Mr. Chamberlin could express his remorse and accept the jail term. There was some indication that Mr. Chamberlin was the subject of sexual abuse in his youth. Defence counsel indicated that Mr. Chamberlin hoped to be able to obtain treatment while in custody.

He expressed remorse and apologized through his counsel. [ 44 ] In conclusion and based on the authorities submitted by the Crown and defence, as well as the authorities quoted within the James and Leroux , both Queen’s Bench and Court of Appeal decisions I find that the proposed sentence of five years total, is close to the range, although on the lower end, that similar offenders have received when the sentences are consecutive and the principle of totality is applied.

On an overall consideration of the offences and the sentence recommended, I do not find that it is unfit or otherwise contrary to the public interest and as such accept the joint submission as to the proposed sentence. [ 45 ] As stated previously the determination that the sentence is fit and not contrary to public interest involves more than a determination of similar sentences, as the agreement put forward by way of joint submission involves many more factors as previously referred to. [ 46 ] The joint submission, which is accepted by the Court, and is the sentence to be imposed upon Mr.

Chamberlin is as follows: Count #1 - 6 months custody, served consecutively to any other sentence. Count #2 - 6 months custody, served consecutively to any other sentence. Count #3 - 2 years custody, served consecutively to any other sentence. Count #7 - 2 years custody, served consecutively to any other sentence. Mandatory/Discretionary Ancillary Orders

[ 47 ] There will be an order pursuant to

section 490.012 of the Criminal Code requiring Mr. Chamberlin to comply with the Sex Offender Information Registration Act. The length of the registration will be for life as per s. 490.013(2.1). [ 48 ] There will be an order pursuant to s. 487.051, Form 5.03 of the Criminal Code for the taking of a bodily substance for the purpose of forensic DNA analysis and storage of the results in the national DNA databank, pursuant to the DNA Identification Act, 1998 , the offence being a primary designated offence. [ 49 ] There will be an order pursuant to s. 109 of the Criminal Code prohibiting Mr.

Chamberlin from having in his possession any firearm, crossbow, restricted weapon, ammunition or explosive substance for a period of 10 years after the time of his release from imprisonment. [ 50 ] There will be an order pursuant to s. 161(1)(a)(

b) and (c), prohibiting Mr. Chamberlin from: (

a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre; (

b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years; (

c) having any contact, including communicating by any means, with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the Court considers appropriate. [ 51 ] The mandatory victim surcharges will apply, and will be payable immediately, and in default of payment, Mr. Chamberlin may serve default time concurrently to any other sentence.

Conclusion [ 52 ] The principles of sentencing in sexual assaults of children, and the resulting sentence, strive to achieve many things but of prime importance is general deterrence to those that may consider preying on children. [ 53 ] What is likely a greater deterrence to those contemplating sexually assaulting children is that people will come forward, even child victims and report such crimes.

They should know that victims, at great personal cost to themselves, will report the abuse they have suffered. [ 54 ] What we have seen in this matter is that a young 13 year old child had the courage to report the sexual assaults that he was suffering. This led to three other parties, who also had been the victims of Mr. Chamberlin, to come forward. The four have put aside any concern for themselves, and brought Mr. Chamberlin into the public eye to account for his crimes. [ 55 ] By their actions, these four courageous people have greatly reduced the chances of Mr.

Chamberlin harming other children that might have crossed paths with him.

[ 56 ] It is this courage that should be remembered. [ 57 ] Dated this 6 th day of May, 2015. ___________________________ K. Bazin, J