R. v. Snider, 2011 ONCJ 306

Information No. 09-11317 Citation: R. v. Snider , 2011 ONCJ 306 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. MICHAEL SNIDER REASONS FOR SENTENCE Before THE HONOURABLE JUSTICE P.L. BELLEFONTAINE on May 5, 2011 at OSHAWA, Ontario APPEARANCES : T. D’Eri Counsel for the Crown R.

Aiken Counsel for Michael Snider THURSDAY, MAY 5, 2011 : REASONS FOR SENTENCE BELLEFONTAINE, J. (Orally): These are my reasons for sentence in the matter of Michael Snider, who’s been convicted after trial of charges of sexual assault, sexual interference and invitation to sexual touching, arising out of an incident on the 27 th day of February in the year 2009. I have found, on the basis of Mr. Snider’s admissions to police, that in the family bathroom he had exposed his penis to two year and

eleven month old M.G., while he and his partner were paid babysitters of her and asked her if she wanted to touch it. And shortly before or after, the chronology is a little bit uncertain, although likely after, while drying her off following a bath, he rubbed her vagina for three to five seconds. No digital penetration occurred and he quickly stopped because he realized it was not right and a terrible thing to do. The crimes have had significant effect on the victims in this matter.

In an effort to have M.G. forget the offences, professionals have suggested she not be involved in counselling and her parents have not raised the incident with her. Notwithstanding this, even two years after the offences, she is inappropriately sexually acting out. M.G.’s father has blamed himself for the crime occurring as the day’s babysitting was required as a result of him being away on a fishing trip. He has become depressed as a result, and is taking medication for his depression which appears to be a long term problem for him.

The relationship with his wife has become strained and his relationship with M.G. has also been dramatically affected. M.G.’s mother was so upset by the crime that she missed five months off work, which has placed a severe financial pressure on the family, given that her husband as well took time off work to take care of M.G. The position of the Crown is that a 15 month jail sentence, followed by three years probation is required, to meet the needs of general deterrence and denunciation.

The defence have submitted a 90 day intermittent sentence on one charge, and a 15 month house arrest conditional sentence would be appropriate to allow Mr. Snider to continue his employment. In their victim impact statements, M.G.’s parents have expressed their outrage about the psychological harm caused to M.G. and themselves and the financial devastation that they have suffered in very passionate terms. They want justice to be done and as it seems only fair to them, that as Mr.

Snider has ruined their lives, he should receive a lengthy jail sentence and maybe through his suffering, a sense of balance and a sense of fairness will be achieved. I can indicate it is not within my power, nor is it my role as a criminal court judge, to impose a sentence that will, in any meaningful way, even the scales of suffering or right the balance between Mr. Snider and the victims in this matter.

The difficult task in a situation like this, is to impose a just sanction for the offence in question, particularly in light of the degree of responsibility of the offender, and the circumstances of the offence. Ultimately, our goal as a criminal court is the protection of society, by imposing the least restrictive sentence that will deter the accused and others, and ensure his rehabilitation. We have, as well, to maintain public confidence in the administration of justice by imposing a sentence which appropriately and objectively denounces his conduct.

In order to determine what an appropriate sentence is, we looked to see what the sentences customarily imposed for similar offenders committing similar crimes are. We then try to adjust within a reasonable range for the aggravating and mitigating factors that are particular to the offences before the court and that are particular to this offender. The Crown has proceeded summarily in these matters. The count of sexual assault is eligible for a maximum sentence of 18 months in jail. And since November the 30 th of the year 2007, has been a deemed serious personal injury offence, as defined in

section 752. The counts of sexual interference and invitation to sexual touching are eligible for maximum 18 month sentences and at the time of the charges before the court, carried a minimum sentence of 14 days. Mr. Snider is now 26 years of age. A positive pre-sentence report has been filed with respect to him. He has been steadily employed and is regarded extremely highly by his employer for his strong work ethic. His position at work will be kept available to him because of his strong record at work. He maintains the support of his longtime partner, who is the mother of his children, and family.

Those who know him view the offences to be extremely out of character for him and consider him to have been a devoted and loving father to his two young sons. The Children’s Aid Society have been involved and have permitted him supervised access to his children and are supportive of him being reunited with his children. The incidents appear to be isolated and unplanned, although, in Mr. Snider’s confession, one would have occurred after M.G.’s bath and at least some minutes apart from the other offence. In his confession, Mr.

Snider appears to be very much guilt ridden and remorseful for doing what he considered to be a terrible thing. That remorse has not continued through to accepting responsibility by a plea of guilty, but nonetheless, shows him to be one who appreciates the vile and repugnant nature of these offences. Mr. Snider has not breached his restrictive bail in the two years since the offence and there’s no question that any lengthy jail sentence will impose a very severe financial hardship on his family. Some aggravating features common to these offences are not present in this one.

No digital penetration of M.G. was established and no force or collateral violence was used beyond that inherent in the crime. There was no corrupting influences imposed on M.G. as a result of this act, that is no bribes or drugs or other items were used to persuade her to participate. Mr. Snider has a criminal record, including a finding of guilt for assault causing bodily harm in the year 2004, for which he received a conditional discharge and a driving charge for exceeding 80 milligrams of alcohol in 100 millilitres of blood in the year 2008. The defence concedes this is a breach of trust case. Mr.

Snider’s partner was babysitting M.G. for compensation and Mr. Snider was assisting and fulfilling the role of a caregiver. M.G. was just under three years of age and extremely vulnerable to this type of crime. Whichever of the acts occurred second in time, Mr. Snider would have had some time to appreciate the wrongfulness of his action, before involving himself sexually a second time with M.G., supporting some level of depravity beyond this being an unconsidered spontaneous touching. The offences had tremendous negative, emotional and financial effects on M.G.’s parents.

Indeed, these offences no doubt are a nightmare imagined by many parents that none should be subjected to in real life, as they have been. The harm is being perpetuated by M.G.’s ongoing sexual behaviours and requests. I consider specific deterrence and rehabilitation of Mr. Snider and the protection of the community to not be the primary sentencing factors in this matter. I do not see Mr. Snider to be at high risk of re-offending, or that a lengthy jail term is necessary to deter him from re-offending. The ancillary probation and agreed upon orders are likely to be adequate to protect other children from Mr.

Snider. I note, as well, that no jail sentence in the ranges submitted will derail Mr. Snider from the pro-social lifestyle that he has generally been living. Our Court of Appeal has stated repeatedly that denunciation and general deterrence are the primary sentencing factors in this case and they are the ones which I prefer to rely on in this matter. I cannot accede, however, to the defence position, that general deterrence here can be addressed by a conditional sentence. Given the statutory minimum penalties, and the deemed personal injury offence status of the

sexual assault charge, I consider that option to be statutorily barred by

section 742.1 and to, in any event, not meet the needs ofdenunciation and general deterrence required in these circumstances. A number of cases have been provided by counsel. Mid range reformatory terms appear to have been commonly imposed for similaroffences, or suggested to be in the appropriate range. For example, in R. v. Manjra, (2009), 2009 ONCA 485 , O.J No. 2484(O.C.A.), a decision of our Ontario Court of Appeal, a first offender was sentenced to 17 months for one count of sexual interferencecommitted by licking the vagina of a seven year old neighbour.

The Court of Appeal upheld the finding that there was a low level breachof trust relationship involved and upheld the 17 month sentence, as within the range for the offences, even for a first offender. I note,also R. v. Mark Real, reported 2009, O.N.C.A. number 912, another decision from our Court of Appeal, where in a very briefendorsement a 90 day intermittent sentence was upheld for two counts of sexual interference. Although the facts are not articulated inthat case, the case does suggest that a broader range of sentencing can be considered for these offences.

While I do consider the offences to be out of character for Mr. Snider, unplanned and at the low level of intrusiveness, there aresignificant aggravating factors. There have been substantial emotional damage caused to M.G. and M.G.’s parents, which will take along time to resolve. At less than three years of age, M.G. is particularly vulnerable and her extreme youth makes the crime particularlyheinous, requiring significant denunciation. I considered the breach of trust by an individual who is caring for children forcompensation, to be a high level breach of trust case that elevates the need for denunciation.

If you could just stand up please, sir. Mr. Snider, the lowest sentence that I can impose in this matter to meet the needs of this particularcase, including your personal circumstances, is one of 12 months in jail. That will be followed by three years of probation. The probation order will include many statutory terms and provisions which I’ll directthe court staff to explain to you before you leave the building here today. One of them is a term that you keep the peace and be of goodbehaviour.

As well, you’ll have to report once per month or as often as required to a probation officer and reside at a place approved ofby your probation officer. And you will attend and actively participate in any assessment and counselling that may be required of you by your probation officer, tothe satisfaction of your probation officer. You will be bound by the Sex Offender Information Registration Act provisions of the Criminal Code for a period of 10 years fromtoday’s date. And pursuant to

Section 110, you will not be permitted to have any firearms, ammunition, or any of the related items listed in theCriminal Code for a period of 10 years. Under

Section 161 of the Criminal Code, for a period of 10 years from release from custody, or the termination of any mandatorysupervision order in this matter, you will prohibited from attending a public park or public swimming area where persons under the ageof 16 years are present or can reasonably be expected to be present or a daycare centre, school ground or playground. Madam clerk, I’djust ask that you ensure the wording in the form that reads ‘or community centre’ be deleted. It’s been held to be unconstitutional by ourCourt of Appeal.

As well, sir, you will be prohibited from seeking, obtaining or continuing any employment, whether or not the employment isremunerated or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards a person underthe age of 16 years or from using a computer system within the meaning of

Section 342.1(2) for the purpose of communicating with aperson under the age of 16 years. I will require as well, Mr. Snider, that you provide a sample of your bodily substances to the Durham Regional Police Service for DNAtyping purposes and I’ll attach a number of terms and conditions to that order to make sure the sample’s taken in a safe and sterilefashion and a fashion that respects your personal privacy and integrity as much as we can.

Madam clerk, the 12 months sentence will be concurrent on the sexual assault and the sexual interference charges and it can be threemonths concurrent with respect to the invitation to sexually touching count. Is there anything I’ve overlooked from the Crown’sperspective, Ms. D’Eri? MS. D’ERI: No, I believe that’s everything, thank you. THE COURT: And, Mr. Aiken, is there any problem with the way I’ve worded or structured the orders? MR. AIKEN: Satisfactorily worded, thank you. THE COURT: Thank you. And Mr. Snider, I sincerely wish you all the best in the future.

There’s obviously a great many good thingsbeing said about you during the course of this sentencing. I know this will be a difficult time for you and your family coming up and wewill wish you well in terms of getting over this and hopefully this will be your last time before the court, sir. Thank you. MS. D’ERI: Your Honour, sorry to interrupt, there is one thing further thing, I’m just wondering if there are any terms of no contactduring the term of probation? THE COURT: Oh, I’m sorry, I hadn’t – I should have included that. MS. D’ERI: I hadn’t addressed them in my submissions... THE COURT: Thank you. MS.

D’ERI: And maybe I am to blame.

THE COURT: Thank you. Madam clerk, I’ll need the exhibits. There will be an order to not communicate or associate directly or indirectly with Michaela Gryzelak and Michael Gryzelak, and I’ve forgotten Mrs. Thompson’s first name. MS. D’ERI: Heather Thompson. THE COURT: Thank you. And Heather Thompson, as well. MS. D’ERI: I would ask for a remain away condition, as well please, sir. THE COURT: Thank you. And 50 metres away from any known place of residence, education or employment of any of them. MS. D’ERI: Thank you. THE COURT: Thank you. MR. AIKEN: Thank you. THE COURT: No difficulty, Mr. Aiken? MR.

AIKEN: Thank you. THE COURT: Thank you. And so you’ll be required, as well to remain at least 50 metres away from any known place of residence, education or employment of those three named individuals, sir. MR. AIKEN: Thank you, Your Honour. THE COURT: Thank you, Mr. Aiken. MR. AIKEN: Thank you, Your Honour. COURT CLERK: I’m sorry, can I just confirm the names? Heather Thompson. MS. D’ERI: T-H-O-M-P-S-O-N. THE COURT: Let’s take a short break, Ms. D’Eri, just to let everyone get organized. ******** COURT ADJOURNED