R. v. Levesque, 2019 ONCJ 408

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code , which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (

b) on application made by the victim, the prosecutor or any such witness, make the order. . . . 486.6 OFFENCE —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE CITATION: R. v. Levesque , 2019 ONCJ 408 DATE: 2019-06-10 COURT FILE No.: Brampton18-4006 BETWEEN: HER MAJESTY THE QUEEN — AND — ALONZO LEVESQUE Before Justice S. Martins Heard on March 21, 2019 and May 31, 2019 Reasons for Judgment released on June 10, 2019

Ms. Keeley Holmes............................................................................ Counsel for the Crown Mr. Mark Hogan .................................................................... Counsel for Alonzo Levesque Martins J.: Introduction [ 1 ] For decades Mr. Alonzo Levesque has preyed on young and vulnerable boys to fulfil his sexual desires. He has a lengthy criminal record regarding his sexual abuse of children which begins in 1968. In this case, he has pled guilty to two offences; Indecent Assault and Gross Indecency. [ 2 ] The Crown is seeking a sentence of 5 years. Counsel for Mr.

Levesque is seeking a sentence in the mid to upper reformatory range of 12 months to 2 years less 1 day followed by a probationary period. The circumstances of the offences [ 3 ] Mr. Levesque was a hockey referee and he met the complainant M.G. in a hockey arena. He targeted M.G. because he attended the arena alone. The offences occurred between 1970 and 1973, a time when M.G. was 10 to 13 years old. [ 4 ] M.G. was trustful of Mr. Levesque because he was an adult, a hockey referee and part of the Big Brothers organization. The grooming relationship started when Mr.

Levesque would offer to drive M.G. home from the hockey arena. He built a trusting relationship with M.G. and M.G.’s parents. [ 5 ] The physical abuse commenced when, one day, Mr. Levesque took M.G. and a group of young boys to a drive-in movie. During the movie, Mr. Levesque had M.G. sit on his lap to watch the movie. Mr. Levesque put his hand down M.G’s pants and fondled his genitals. [ 6 ] A short time after the incident at the drive-in, Mr. Levesque had M.G. over to his home for a sleepover. They slept in the same bed. M.G. was awoken in the middle of the night by Mr.

Levesque performing fellatio on him. [ 7 ] M.G.’s home life was troubled. Mr. Levesque took advantage of that troubled home life and offered to take M.G. in and raise him as his own son. M.G.’s mother agreed and he moved in with Mr. Levesque when he was 10 years old. [ 8 ] After moving in with Mr. Levesque, the abuse occurred on almost a nightly basis. The daily or nightly abuse consisted of Mr. Levesque performing fellatio on M.G. and on one occasion asking M.G. to perform fellatio on him, but M.G. did not. On one other occasion, Mr.

Levesque tried anal sex with M.G. but M.G. ran to the bathroom and it was never tried again. [ 9 ] On one specific occasion M.G. remembers having a friend come over for a sleepover. Mr. Levesque, M.G. and the other young boy all slept in the same bed. During the night M.G. awoke to find Mr. Levesque performing fellatio on his friend. [ 10 ] The abuse ended when one day the police came to arrest Mr. Levesque for other incidents of sexual abuse of young boys. At the time, M.G. denied to police that he was a victim of abuse by Mr. Levesque.

He did that because he was fearful. [ 11 ] M.G. ultimately returned to live with his mother and never saw Mr. Levesque again. The circumstances of the accused [ 12 ] Mr. Levesque is 74 years old. He was adopted as an infant and he has no siblings. Mr. Levesque’s parents are both deceased. Mr. Levesque has never been married and does not have any children. [ 13 ] For most of Mr. Levesque’s adult life, while he was not in custody, he worked as a superintendent for different property management companies.

When he was released from custody in 2009, he held an administrative job at the Colorectal Cancer Association until 2015 when he retired. Prior to his detention in this case, Mr. Levesque again was managing a property in the same neighbourhood where he resided. [ 14 ] In addition to his paid employment, Mr. Levesque has been a regular full-time volunteer at Communitas since 2009. Communitas is a non-profit organization in Montreal designed to reintegrate offenders back into their communities. There was testimony at the sentencing hearing from Ms.

Jerri-Lee Pitzel, a member of the Board of Directors of Communitas and the coordinator of a weekly group called Open Door. In addition, a letter was filed by Mr. Peter Hirsh, President of the Board of Communitas. Ms. Pitzel and Mr. Hirsh both discussed how Mr. Levesque is instrumental in assisting with the weekly running of the Open Door program. He assists by being in charge of refreshments, securing guest speakers and at times running the group. It is clear that Mr.

Levesque’s volunteer hours are greatly appreciated and that Communitas will continue to support him when he is released again from custody. [ 15 ] In addition, three further letters of support were filed on behalf of Mr. Levesque to comment on his work at Communitas. The letters describe the help Mr. Levesque provides to the organization and its members, some of whom have just been released from custody and into the community.

The impact on the victim [16] There is a formal victim impact statement from M.G. before the court. In addition, M.G. speaks about the impact of thesecrimes in his statement to the police which is an exhibit in this case. [17] Both statements demonstrate the profound and devastating impact of Mr. Levesque’s offences on M.G.’s life as a child and asan adult. [18] M.G. stated the he “lost his childhood” because he used to enjoy sports especially hockey but stopped after the abuse. Also as aresult of the abuse, he dropped out of school due to poor concentration.

To this day, he has been unable to sustain meaningful adultrelationships and has been unable to maintain any employment for a significant period of time. This caused him, at times, to behomeless. He does not have a relationship with his children because he is distant and an emotionally closed off person. [19] M.G. has also had issues with substance abuse and with sleeping. For much of his life he turned to drugs and alcohol in order tonumb his pain. He has no ability to sleep properly and often wakes up screaming. He is depressed and has attempted suicide on severaloccasions.

He was unable to disclose the abuse to anyone until he came forward to the police. He continues to struggle with all aspectsof his life. The principles of sentencing [20] The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safesociety by imposing just sanctions.

How much emphasis a court places on each of these objectives will vary according to the nature ofthe crime and the circumstances of the accused. [21] The sentence should be proportionate to the gravity of the offence and the degree of responsibility of the offender. [22] The sanction that the court imposes should have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; (

f) to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community. [23] There is no dispute that in sentencing offenders for sexual crimes against children the primary principles of sentencing aredenunciation, general deterrence and protection of the public. [24] In R. v. Woodward, 2011 ONCA 610 , [2011] O.J. No. 4216 (CA), Justice Moldaver stated that the primary focus ofsentencing child sexual abusers should be on denunciation, deterrence and protection of the public.

The court said at paragraph 76: In so concluding, I wish to emphasize that when trial judges are sentencing adult sexual predators who have exploited innocent children,the focus of the sentencing hearing should be on the harm caused to the child by the offender’s conduct and the life-alteringconsequences that can and often do flow from it.

While the effects of a conviction on the offender and the offender’s prospects forrehabilitation will always warrant consideration, the objectives of denunciation, deterrence, and the need to separate sexual predatorsfrom society for society’s well-being and the well-being of our children must take precedence. Range of sentences for sexual assaults on children [25] It is important for every sentencing judge to remember that every sentencing case is unique. A sentencing court must balanceall the factors present in each individual case to arrive at a just sentence.

Nonetheless, it is important for a sentencing judge to bemindful of the general range of sentences for similar offences and ranges identified by appellate courts. [26] In R. v. D.D., (ON CA), [2002] O.J.

No. 1061 (CA), the leading case on the range of sentences for sexualoffences committed against children, the Court of Appeal concluded at paragraph 44: To summarize, I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young childrenon a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms.

When the abuses involve full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physicalviolence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate.

Finally, incases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higherpenalties will be warranted. [27] In D.D., supra, the Court of Appeal upheld the sentence of 9 years and 1 month (reduced to 8 years and 1 month by reason ofpre-sentence custody) for the sexual abuse of 4 young boys aged 5 to 8 years old; the duration of the abuse was from 2 to 7 years.

Theabuse consisted of regular and persistent masturbation, oral sex, group sexual encounters involving D.D. and several of the boys,attempted acts of anal intercourse with 3 of the victims and completed acts of anal intercourse with 2 victims. D.D. was in a position oftrust with the boys as he assumed a role akin to that of a step-father. [28] The issue arose in R. v. Woodward, supra, whether the range of sentence announced in D.D., supra, applied to cases where there

was a single victim. [29] In Woodward, supra, the Court of Appeal upheld the 5 year sentence imposed by the trial judge for the offence of sexualassault. The offence occurred over one day with one victim. Mr. Woodward met the 12 year old victim after school in an industrialpark. He pretended to transfer into her bank account a very large sum of money to have sex with him. Mr.

Woodward put her hand onhis penis and had her move it up and down, had her perform fellatio on him, he touched her genitals, he had vaginal intercourse with herand then had her perform fellatio on him a second time. [30] In upholding the trial judge’s sentence in Woodward, supra, Justice Moldaver stated at paragraph 75: Adult predators who seduce and violate young children must face the prospect of a significant penitentiary term. The five-year sentenceimposed on the appellant for the sexual assault he committed on the 12-year-old complainant is not excessive.

In light of the appellant’spast criminal activity and the lack of any meaningful mitigating factors available to him, if anything, it was lenient. Whileacknowledging that trial judges retain the flexibility to fashion a fit and just sentence in the particular case, crimes like those committedby the appellant will typically warrant mid- to upper-level single-digit penitentiary sentences. The additional 18 months the appellantreceived for the offence of luring was entirely appropriate and did not render the global sentence excessive.

The aggravating and mitigating factors [31] In determining the appropriate sentence both aggravating factors and mitigating factors must be considered. [32] The aggravating factors in this case are:

a) The complainant in this case was under the age of 18. M.G. was between 10 and 13 during the abuse. This is a statutorilyaggravating factor;

b) Mr. Levesque abused his position of trust as he, for much of the time of the abuse, was the parent to M.G. This is a statutorilyaggravating factor;

c) It is clear from the victim impact statement and M.G.’s statement to the police that these offences have had a significant andprofound impact on him. This is also a statutorily aggravating factor;

d) Mr. Levesque targeted M.G. knowing that he was vulnerable;

e) Mr. Levesque’s conduct was calculated, premeditated and manipulative;

f) Mr. Levesque’s offences were invasive and included fellatio and one attempt at anal intercourse;

g) Mr. Levesque’s offences were persistent and prolonged; almost daily or nightly abuse over a three-year period.

h) Mr. Levesque has a lengthy record for sexual offences against children. His record includes offences that pre-date the time-frame ofthese offences and offences that post-date these offences. [33] There are also mitigating factors in this case:

a) Mr. Levesque entered a plea of guilt at an early opportunity and this acceptance of responsibility has saved M.G. from the harms oftestifying;

b) Mr. Levesque has genuine remorse for his actions as demonstrated both in the Pre-Sentence Report and his genuine and heartfeltapology to M.G. in court;

c) Mr. Levesque, since his release from custody in 2009, has contributed countless volunteer hours to Communitas, a non-profitorganization designed to reintegrate offenders back into their communities;

d) Mr. Levesque acknowledges that he is a pedophile and as such, he knows and has made a conscious effort since 2009 to stay clear ofchildren and of situations that could be a trigger for him. Consequently, he is committed to not re-offend in the future.

Section 718.2(

c) and its application to this case [34]

Section 718.2(

c) of the Criminal Code, known as the totality principle, instructs sentencing judges to be mindful whenimposing consecutive sentences that the total sentence must not be unduly harsh or so long that it is crushing to the offender. [35] The question in this case is what role, if any, does the principle of totality play in circumstances where Mr. Levesque hasalready been sentenced for similar offences in the same timeframe. Justice Greene, in R. v. Stuckless, 2016 ONCJ 338 , [2016]O.J.

No. 3030 (OCJ) at paragraph 81, summarized the limited judicial authority on this point. [36] In Stuckless, supra, the court reviewed two decisions dealing with this issue. In R. v. James, 2013 MBCA 14 , [2013]M.J. No. 48 (CA), the Manitoba Court of Appeal held that the totality principle did not apply in this situation as this principle onlyapplies to consecutive sentences. [37] Following the Manitoba Court of Appeal, Justice Cole reached the same conclusion in R. v. McLeod, [2014] O.J. No. 6063(OCJ) at paragraph 77, where he stated: …I am firmly of the view that Mr.

McLeod cannot make any direct claim to any reduction of sentence because of the existence of theprevious sentence imposed for offences committed in the same time frame against different victims. The logic of the Manitoba Court of

Appeal in the notorious “hockey coach” case of R. v. James, 2013 MBCA 14 , [2013] M.J. No. 48 reversing the decision of thetrial judge who did exactly this [2012] M.J. No. 89 (Man.Prov.Ct.), seems to me to be unassailable on this issue. [38] Having reviewed these cases Justice Greene in Stuckless, supra, found at paragraph 81: …it is my view that the appropriate approach is to apply the principle of totality to the offences that are presently before the court once Ihave decided the appropriate sentence for each offence and then only if it is necessary to ensure that the overall sentence is not crushing.

This does not mean that the prior sentence is irrelevant. In my view the fact that Mr. Stuckless has already spent 6 years in custody forsimilar offences that took place during the same period and that upon his release he has not re-offended is a relevant factor in assessingthe overall appropriate sentence. [39] I agree with the approach in Stuckless, supra, that I must take into consideration the prior sentences of Mr. Levesque for similaroffences that took place in the same time period. However, unlike the Stuckless case, Mr.

Levesque did continue to sexually re-offendchildren after his incarceration for offences committed during this same time period. [40] Therefore, while I agree that prior convictions for offences that occurred in the same time period is a factor that can beconsidered, on the facts of this case there will not be a reduction of Mr. Levesque’s sentence for two reasons. First, I have very limitedinformation regarding the facts of his prior convictions that are alleged to have occurred in the same time period as these offences. Theonus is on Mr.

Levesque to prove this possible mitigating factor and with the absence of evidence I am not persuaded that there should beany mitigation. Second, Mr. Levesque did not go on live an exemplary life; he went on to re-offend young boys. The age of the offences and the passage of time [41] The passage of time or the age of the offence is irrelevant to sentencing in terms of the gravity of the offence, meaning it doesnot diminish the need for a denunciatory sentence. [42] However, the passage of time is relevant to specific deterrence and rehabilitation of the offender.

The passage of time and theabsence of any offending behavior by the accused demonstrates that he does not require specific deterrence or rehabilitation. See R. v.D.H., [2017] O.J. No. 831 at para. 137 and R. v. J.M., [2017] O.J. No. 2641 at para. 31-32. [43] In this case, the passage of time shows that Mr. Levesque does require specific deterrence and rehabilitation. Mr. Levesque didnot go on to lead an exemplary life. In fact, he went on to continually re-offend children. [44] What is also significant from the Pre-Sentence Report is that Mr. Levesque is a self-admitted pedophile.

He knows that youngboys are a trigger for him to re-offend. Despite that, Mr. Levesque has not engaged in any meaningful or lengthy counselling. Whileserving a federal sentence when he was approximately 25 years old, he remembers attending treatment for sexual offending behavior,however, he said the treatment was “brief” and he could not recall any of the information covered in the counselling. He also referred totaking a sexual offending course at a later date at Warkworth Institution for six months. Mr.

Levesque stated in the Pre-Sentence Reportthat he manages his sexual urges for young boys by just reminding himself that he does not want to victimize more children. [45] Not mentioned in the Pre-Sentence Report by Mr. Levesque, but provided to the court through his counsel, are the certificatesof counselling that Mr. Levesque completed at the Warkworth Sexual Behavior Clinic at Warkworth Institution. In addition, there is aletter from Dr. Howard Barbaree from the Warkworth Sexual Behaviour Clinic dated January 27, 1992, which confirms that Mr.Levesque spoke openly to the media about his offences. Dr.

Barbaree credits Mr. Levesque’s candor with the media in increasing publicawareness of the issues relating to sexual assault. [46] While there is insight into his offending behavior and triggers, Mr. Levesque remains to be a risk to the community to re-offend. According to the Pre-Sentence Report, Mr. Levesque underwent a psychiatric assessment pursuant to

section 752.1 of theCriminal Code recently and he was assessed as presenting a very high risk of reoffending with offences involving homosexualpedophilia. The psychiatrist indicated that it would be very important for Mr. Levesque to be well supported and supervised during hisrelease and for him to receive counselling through a clinic specialized in pedophiles. Mr. Levesque has not done that since his releasefrom custody in 2009. The appropriate sentence in this case [47] The five cases provided by counsel for Mr.

Levesque, outlining a reformatory sentence for similar historical offences, all havetwo very distinct differences relating to the circumstances of the offender and the circumstances of the offence. In each of those cases,the offenders had no prior criminal record for related offences. More importantly, all the offenders in the cases provided went on to liveproductive and pro-social lives for many decades with no re-offences. In addition, in all of the cases relied upon, the conduct of theoffenders was not akin to these offences; repeated and sustained daily abuse for a period of three years.

Therefore, I do not find thesecases persuasive as it relates to the facts of this case to support a reformatory sentence. See R. v. D.H., [2017] O.J. No. 831 (OCJ); R. v.Erlich, [2015] O.J. No. 1399 (OCJ); R. v. J.M., [2017] O.J. No. 2641 (SCJ); R. v. Tavares, 2013 ONCJ 381 , [2013] O.J. No.3261 (OCJ); R. v. Gallienne (unreported case of Justice S. Hunter (OCJ) – Tab 10 of the Respondent’s Sentencing Authorities). [48] In determining the appropriate sentence, I am mindful of the principles and objectives of sentencing.

Against that backdrop, Ihave also considered the aggravating and mitigating factors detailed above. In light of all of this, I have concluded that the sentenceurged by defence counsel of mid to upper reformatory imprisonment, would fall short of achieving the sentencing objectives thatpredominate for offences of this nature. Given all the circumstances, the objectives of denunciation and deterrence require a penitentiarysentence.

Conclusion [49] After carefully considering all of the circumstances, in light of the relevant sentencing principles and objectives, I haveconcluded that a sentence of four years imprisonment is the appropriate sentence for Mr. Levesque for both offences to be served

concurrently. [ 50 ] Mr. Levesque has spent 82 days in pre-sentence detention. I will enhance the credit and note it as 120 days. Deducting the 120 days from the 4 year sentence the remaining time in custody will be 3 years and 8 months. The pre-sentence detention will be noted on his record. [ 51 ] In addition to the period of incarceration, there will be a SOIRA order for life on both counts, a DNA order on both counts and a section 161(1.1) order for life. Moreover, pursuant to

section 743.2(1) Mr. Levesque shall not communicate with M.G. while he is in custody. Released: June 10, 2019 Signed: Justice Sandra Martins