Her Majesty the Queen - v. -, 2011 SKPC 50

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 050 Date: March 31, 2011 Information: 24378492 Location: Estevan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Joseph Patrick Glasser Appearing: Bill Burge For the Crown Paul Harasen For the Accused SENTENCING DECISION J. KALMAKOFF , J FACTUAL BACKGROUND [ 1 ] Joseph Patrick Glasser pled guilty to committing indecent assaults between June of 1975 and December of 1978, near Pangman, Saskatchewan. At the time of the offences, Mr. Glasser was between 28 and 31 years of age.

The victim of the offences was a teenaged boy, who was 14 to 17 years old at the relevant times. Mr. Glasser had once been a teacher at the school in Pangman. He taught the victim in grades 6 and 7, approximately two to three years before the offences began.

[2] At the time of the offences, Mr. Glasser was no longer teaching in Pangman, but remained a friend of the victim’s family,and would stay at their residence on occasion. Approximately twenty times over a period of nearly three years, Mr. Glasser tookadvantage of situations of contact with the victim, and indecently assaulted him by fondling his genitals and masturbating him to thepoint of ejaculation. On the first occasion, the victim said nothing, but after that, objected to Mr. Glasser’s advances. [3] The victim did not disclose the offences until 2010. Mr.

Glasser admitted responsibility shortly thereafter, and entered aguilty plea to the charge. POSITION OF THE PARTIES [4] The Crown seeks a period of imprisonment of one year, followed by probation, and argues that a conditional sentence wouldbe inappropriate. Mr. Glasser argues that he should be allowed to serve any sentence of imprisonment in the community, as aconditional sentence. Alternatively, if a conditional sentence is not granted, he seeks a lesser term of imprisonment, in the range of threeto six months.

ANALYSIS [5] The Saskatchewan Court of Appeal has clearly stated that sexual offences committed against children must be considered atleast as serious, if not more serious, than sexual offences committed against adults (See R. v. Revet, 2010 SKCA 71), and that in suchcases, the sentencing objectives of deterrence and denunciation are to be given primary consideration, along with the principle ofproportionality (See, for instance, R. v. M.S., 2003 SKCA 33; R. v.

M.G.C., 2003 SKCA 83). [6] Review of the relevant authorities leads me to the conclustion that a suspended sentence would be inappropriate in this case,as the appropriate sentence for this type of offence, committed in the circumstances described, requires a period of imprisonment. Thatsaid, I am also satisfied that a penitentiary term is not required in this case; a sentence of less than two years would be appropriate. Icome to that conclusion after considering the position taken by the Crown, the nature of the offence, and the fact that Mr.

Glasser haslived crime-free in the community for more than 30 years since these offences were committed. In the considerable time that has passedsince he committed the offences, Mr. Glasser has done more than simply stay out of trouble, he has been a positive and productivemember of the community, a fact for which he can be given some credit in determining the appropriate sentence, as noted in R. v.Ramsey (2000), 2000 SKQB 198 , 193 Sask.

R. 68 (Q.B.). [7] As a consequence of the evolution of the Criminal Code provisions relating to sentencing, a conditional sentence ofimprisonment is, at law, an available sentencing option for Mr. Glasser. The issue is whether that would be an appropriate sentence inthe circumstances of this case. [8]

Section 742.1 of the Criminal Code says that I may allow an offender to serve a sentence of imprisonment in the communityif I am satisfied that doing so would not endanger the community, and would be consistent with the fundamental purposes and principlesof sentencing outlined in sections 718 to 718.2 of the Criminal Code. [9] Mr. Glasser is 64 years old. He has no criminal record apart from this offence. The Pre-Sentence Report describes him as alow risk to re-offend. More than 30 years have passed since the commission of this offence, and during that time he has not been introuble with the law.

I have no reason to believe that he would not comply with the conditions of a conditional sentence order. I amsatisfied that allowing Mr. Glasser to serve a sentence of imprisonment in the community would not endanger the community. [10] The more difficult question is whether allowing Mr. Glasser to serve his sentence in the community would be consistent withthe fundamental purposes and principles of sentencing in sections 718 to 718.2. [11] The fundamental principle of sentencing, as set out in

section 718.1 of the Criminal Code, is that a sentence must be

[ 11 ] The fundamental principle of sentencing, as set out in

section 718.1 of the Criminal Code , is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 12 ]

Section 718 sets out the purposes of sentencing which include denunciation, deterrence, separation of offenders from society, rehabilitation of offenders, reparations for harm to the victim and community, and the promotion of a sense of responsibility in offenders as well as acknowledgment of harm done. The relative emphasis placed on each of these objectives will vary according to the circumstances of the offence and the offender. [ 13 ]

Section 718.01 requires a sentencing court, when imposing a sentence for an offence involving abuse of a person under the age of 18 years, to give primary consideration to the objectives of denunciation and deterrence. Although this provision was enacted after the commission of this offence, it is still applicable, as it served merely to codify pre-existing sentencing law. [ 14 ]

Section 718.2(

a) requires a court to increase or decrease a sentence to account for any relevant aggravating or mitigating circumstances. Abuse of a position of trust or authority is deemed to be an aggravating factor, as is the abuse of a person under the age of 18. [ 15 ]

Section 718.2(

b) embodies the principle of parity, requiring similar sentences for similar offences committed by similar offenders in similar circumstances. Sections 718.2(

d) and (

e) embody the principle of restraint, i.e. that a court must consider all reasonable sanctions other than imprisonment, and should not resort to imprisonment if less restrictive sanctions may be appropriate in the circumstances. APPLICATION TO THIS CASE Proportionality: Gravity of the offence and degree of responsibility of the offender [ 16 ] Mr. Glasser was not the victim’s teacher at the time of the offence, but had been his teacher only a few years previous. The position of trust or authority he occupied vis-a-vis the victim was somewhat less than that of a parent, or even a current teacher.

However, in my opinion, Mr. Glasser still occupied a position of significant trust, not only by virtue of his status as a former teacher, but also his status as a trusted friend of the family. [ 17 ] The conduct which made up the offence was in the moderate to high range on the scale of intrusiveness, involving significant violation of the sexual integrity of the victim.

The offence was not a single occurrence; it was repeated as many as twenty times over a three year period. [ 18 ] Although there is no evidence that violence or threats were involved, the offence clearly continued after the victim expressed objection to the conduct. [ 19 ] At the time of the offences, Mr. Glasser was between 28 and 31 years old. He was an adult and in a position of significant responsibility. The victim was a teenager. There is no evidence that Mr. Glasser was under the influence of alcohol or drugs in such a way that diminished his faculties. Furthermore, Mr.

Glasser was and is a high functioning and intelligent individual, and was fully aware of the seriousness of his offence. The evidence suggests that he sought opportunities to be alone with the victim in order to commit the offence, and persisted in doing so over a significant period of time. [ 20 ] The impact on the victim, while not as devastating as some victims of similar offences, was nonetheless significant. [ 21 ] I consider the gravity of this offence and the degree of responsibility of the offender to be extremely serious.

Relevant aggravating and mitigating factors: [22] In this case, I consider the following to be aggravating factors: · the abuse of a position of trust; · the age difference between Mr.

Glasser and the victim, including the fact that the victim was under 18 years of age when the offenceswere committed; · the significant impact of the offences on the victim; · the number of occurrences; · the intrusiveness of the conduct involved and the duration of the offences; and · the offences were not spontaneous; the accused created opportunities to be alone with the victim. [23] I consider the following to be mitigating factors: · Mr. Glasser’s remorse, which I consider genuine; · acceptance of responsibility; · a prompt guilty plea; · lack of criminal record; and · Mr.

Glasser’s character and conduct in the intervening years, which has been extremely positive, bordering on exemplary. Parity: Sentences in similar cases [24] I consider the following cases to be the most relevant in this respect: · R. v. L.F.W. (2000), 2000 SCC 6 , 182 DLR (4th) 90 (SCC). This case involved an accused convicted of indecent assault andgross indecency in relation to offences committed against a younger cousin. The accused was aged 22 to 28 at the time of the offences,while the victim was between 6 and 12. The offender was convicted and sentenced some 20 years after the offences were committed.

The trial judge imposed a 21 month conditional sentence, which was eventually upheld by the Supreme Court of Canada, on a 4-4 split. The comments of Lamer C.J., writing for the four judges who upheld the sentence, and referring to the judgment of the NewfoundlandCourt of Appeal, suggest that the Supreme Court, while upholding the sentence, did not exactly give it a ringing endorsement.

Atparagraph 25, he wrote: I note that Cameron J.A. dissented on the ground that the sentencing judge did not give the principles of denunciation and deterrencesufficient weight, and that a sentence of incarceration was necessary in the circumstances. Were I a trial judge, I might well have agreedwith Cameron J.A. and imposed a sentence of incarceration. That said, as an appellate judge, deference must be given to the trial judge’sdecision. · R. v. Freidel, 2002 SKCA (SentDig) 1. This case involved a 64 year old male who committed one single indecent assault against a 15year old victim 25 years earlier.

The Court of Appeal substituted an 18 month conditional sentence for the 18 month jail sentenceinitially imposed. I note, however, that this case involved one single transaction, and the offender did not appear to be in a position oftrust. · R. v. S.L.M., 2008 SKQB 474. In this case, the accused was 45 at the time of sentencing. He pled guilty to sexual assaults committedagainst his second cousins. At the time of the offences, the accused was aged 24 to 27, and the victims were 12 to 15. The offendingconduct involved touching, fondling, and digital penetration.

Justice Gabrielson rejected a conditional sentence, and imposed an 18month term of imprisonment. At paragraph 24, he noted:

Even with the mitigating circumstances found here and even if the sexual assault did not include intercourse, in my opinion a sentence of imprisonment is necessary to denounce this type of crime upon children and deter others from committing similar acts. Sentences must also be in parity with cases involving similar crimes and circumstances and in this regard I find the facts of this case most similar to the cases of R. v. H.G. , supra ; R. v. S.G.T. , 2006 SKQB 444 , 287 Sask. R. 224, and R. v. B. (K.D.) , 2008 SKPC 1 , 309 Sask. R. 246. · R. v. D.(P.) , 2005 SKCA 60 .

This case involved a 71 year old offender who pled guilty to four counts of indecent assault and one count of sexual assault, involving fondling of four stepdaughters and one grandniece. Most of the offences occurred between 1958 and 1977, while the last set of offences occurred between 1985 and 1988. A conditional sentence was rejected, and the accused was sentenced to 9 months’ imprisonment, followed by 18 months’ probation. The Court of Appeal upheld this sentence. · R. v. M.G.C. , supra . In this case, the offender sexually assaulted his 12 year old stepdaughter.

The conduct involved penetration of the victim’s vagina both with the accused’s fingers and with an object. The offender had a previous record, including convictions for assault. He was originally given a two year less one day conditional sentence. The Court of Appeal overturned this, and imposed a sentence of imprisonment for one year, taking into account the 5 months the accused had already spent on electronic monitoring, and the 10 and a half months he had spent on judicial interim release.

At paragraph 9, Bayda C.J.S. wrote: When one considers the nature of the sexual acts, the relationship between the offender and his victim, the breach of trust which his acts represent, the victim’s age, and the offender’s age, record and personal history, there is little which commends a departure from the need to denounce this offence with a custodial sentence. · R. v. S.G.T. , 2006 SKQB 444 . In this case, the offender was a 36 year old man with no criminal record. He pled guilty to sexually assaulting his adopted daughter. The allegations involved fondling, with no penetration.

Justice Scheibel rejected a conditional sentence, and imposed a term of imprisonment of 18 months. At paragraph 19, he wrote: Nevertheless, the accused must be punished for his acts and the punishment must be such that creates a balance between society and the accused. The conviction was ultimately upheld by the Supreme Court of Canada ( 2010 SCC 20 ), and the sentence upheld by the Saskatchewan Court of Appeal ( 2011 SKCA 4 ). · R. v. L.W.T. , 2008 SKCA 17 . This case involved an offender who was between the ages of 37 and 43 at the time of the offences.

He committed three sexual assaults against victims who were between the ages of 16 and 19. They were young people with whom the offender socialized. The offences involved unwanted fondling and groping. The trial judge rejected a conditional sentence. A sentence of 18 months’ imprisonment, followed by 18 months’ probation was upheld by the Court of Appeal.

The Court noted that the significant age difference, the element of planning which appeared to be present, and the prolonged nature of one of the assaults were some of the factors which combined to make the trial judge’s decision to reject a conditional sentence appropriate in the circumstances. · R. v. J.R.E., 2005 SKPC 114 . This case involved an offender sexually assaulting his stepdaughter on a number of occasions over approximately a ten year period. In terms of the intrusiveness of the conduct, the assaults were similar to the case before me.

The accused had no previous record, was seen as a minimal risk to re-offend, and entered a guilty plea. Judge Benison rejected a conditional sentence, and sentenced the accused to 18 months’ imprisonment. Although the offences occurred some twenty years prior to the sentencing, Judge Benison concluded that the mere passage of time was no reason to treat the offender more leniently.

At paragraph 26 he wrote: Although taking these mitigating factors into consideration, it is my conclusion that, on the facts of this case the principles of denunciation and deterrence must be given precedence over other sentencing considerations to express society’s revulsion for such conduct and to protect vulnerable children. Restraint [ 25 ] I have considered all available sanctions other than imprisonment. In my view, none are appropriate. In the circumstances of this case, only a period of actual imprisonment would be adequate to address the serious nature of the offence committed by Mr.

Glasser. [ 26 ] I say this, first of all, because of the gravity of the offence and the degree of responsibility of the offender. In particular, I consider the intrusiveness of the conduct, the ages of the offender and the victim, and the position the offender occupied in relation to the victim to be extremely significant. As Cameron J.A. noted in R. v. M.S. , supra , at paragraph 25 : Such is the gravity of the offence as committed in this instance.

We cannot gloss over it in the context of considering whether an order allowing the offender to serve a sentence of imprisonment in the community would be consistent with this limb of the fundamental

principle of sentencing. Nor can we gloss over it in turning to the other limb—the degree of responsibility of the offender. [27] Secondly, I am of the view that a conditional sentence would not adequately reflect the need for denunciation and deterrencein this case, considering the nature of the offence and the relevant mitigating and aggravating factors. Where punitive objectives such asdenunciation and deterrence are particularly pressing, incarceration is generally the preferable sanction, even if restorative goals might beachieved by a conditional sentence (See R. v.

Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61, at paragraph 114). In a case such as this- repeated sexual offences committed by an adult against a child - punishment must be imposed in order to restore a proper balance tosociety, no matter when the offence is reported and prosecuted. [28] Finally, I am of the view that, in the circumstances of this case, a conditional sentence would offend the principle of parity.

CONCLUSION [29] Considering all relevant factors, I conclude that, in this case, a conditional sentence would be inconsistent with thefundamental purposes and principles of sentencing. [30] I am of the view that the one year term of imprisonment sought by the Crown is an appropriate sentence in this case. It is aproportionate response to the gravity of the offence and the degree of responsibility of the offender. It is of sufficient length to addressboth the aspects of denunciation and deterrence. In my view, it also appropriately recognizes the mitigating effect of the passage of timeand Mr.

Glasser’s good conduct since the offences occurred. [31] I sentence Mr. Glasser to a term of imprisonment of one year in a provincial correctional centre. [32] In addition to that, I think it appropriate to add a term of probation, as the Pre-Sentence Report identifies a benefit, in terms ofrisk reduction, if Mr. Glasser attends programming. He has indicated a willingness to do so. Therefore, Mr. Glasser will be subject toprobation for a period of 18 months following his release from imprisonment. The terms will be as follows:

a) Keep the peace and be of good behaviour;

b) Appear before the Court when required to do so by the Court;

c) Notify the Court or the probation officer in advance of any change of name or address, and promptly notify the Court or the probationofficer of any change of employment or occupation;

d) Report within 7 days of release to the Chief Probation Officer or his delegate and thereafter as required by the probation officer sodelegated;

e) Abide by the lawful instructions of the probation officer or his or her delegate in regards to specific programming, which may includeparticipating actively in assessments, education, counselling and/or treatment in an approved program for sexual offending, and not givejust cause for dismissal;

f) No contact with R.G., the victim of this offence, and not attend his place of residence, employment, or education; and

g) Shall have no contact, direct or indirect with any child under the age of 16 except in the presence of another adult who has beennotified of these convictions and who is a parent or guardian of that child. [33] The Crown seeks a DNA sample order, pursuant to

section 487.051 of the Criminal Code. Indecent assault is a primarydesignated offence listed in paragraph (

b) of the definition in

section 487.04. There is no evidence which suggests that the impact ofsuch an order on Mr. Glasser’s privacy or security of the person would be grossly disproportionate to the public interest in the protectionof society and the proper administration of justice to be achieved through the early detection, arrest and conviction of offenders. Accordingly, I make an order pursuant to

section 487.051 of the Criminal Code authorizing the taking of samples of bodily substancesfrom Mr. Glasser for forensic DNA analysis.

[ 34 ] Mr. Glasser has been convicted of an indictable offence involving the commission of violence against a person, and for which the maximum penalty is 10 years imprisonment. Accordingly, I make an order pursuant to

section 109 of the Criminal Code prohibiting him from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for a period of 10 years. [ 35 ] The Crown seeks an order under

section 490.012 of the Criminal Code , requiring Mr. Glasser to comply with the provisions of the Sex Offender Information Registration Act . Indecent assault is a designated offence within the meaning of that section. The defence does not oppose such an order being made and did not make application under

section 490.012(4) for exemption from such an order. There is no evidence before me to suggest that the impact of such an order on Mr. Glasser would be grossly disproportionate to the public interest served by such an order. Accordingly, pursuant to sections 490.012(1) and 490.013(2)(b), Mr. Glasser is ordered to comply with the provisions of the Sex Offender Information Registration Act for a period of 20 years. J. Kalmakoff, J