R v. J.S.M., 2016 NSSC 158

SUPREME COURT OF NOVA SCOTIA Citation: R v. J.S.M. , 2016 NSSC 158 Date: 2016-05-26 Docket: CRS 428555 Registry: Sydney Between: Her Majesty the Queen Plaintiff v. J.S.M. Defendant Restriction on Publication:

Section 486 of the Criminal Code of Canada Editorial Notice: Identifying information has been removed from this electronic version of the judgment. Judge: The Honourable Justice Arthur J. LeBlanc. Heard: May 26, 2016, in Sydney, Nova Scotia Oral Decision: May 26, 2016 Written Decision: July 25, 2016 Counsel: R. Stephen Melnick, for the Crown David J.

Iannetti, for the Defence By the Court : [ 1 ] On October 30, 2015, I found J.S.M. guilty of the offences of sexual assault, sexual interference, touching for a sexual purpose and invitation to touch in a sexual manner, contrary to ss. 271 , 151 and 152 of the Criminal Code . [ 2 ] Counsel for J.S.M. and Crown agreed that I should proceed with the sentencing on the counts for sexual interference and

invitation to touch in a sexual manner and that pursuant to the principle set out in R. v. Kienapple, (SCC), [1975] 1S.C.R. 729, I should stay the sentencing on the count of sexual assault. I agree with this submission and grant a stay with reference to thecount of sexual assault and consequently, will proceed on the remaining two counts. [3] It has been observed on many occasions that sentencing is one of the most difficult tasks for the judge. It is a task howeverthat I have been mandated by my appointment to undertake.

It is a task that I have to approach free of sympathy and prejudice.Sentencing is not an exact science. Two judges may come to different results even on the same facts. Nonetheless it is my duty to imposea sentence on J.S.M. today. [4]

An act amounting to sexual interference and/or sexual touching is

an act of violence. It is one perpetrated by one human beingon another. It is an invasion of one of the most private aspect of the person’s human dignity when committed without consent or in asituation where the law does not recognize the giving of the consent or acquiescence. The attack on the human dignity of an individual isnot to be condoned, rather it is to be condemned. [5] The complainant K.T. was the next-door neighbour of J.S.M.. She was the best friend of his youngest daughter. Thecomplainant would frequently go to the home of J.S.M. when her grandmother would care for the two M children.

She would also be atthe home while waiting for her friend to prepare for school. She would also be there on occasions simply to play. Occasionally, shewould be at J.S.M.’s residence for what she described as sleep overs. On occasion, her friend would visit her at her own residence. [6] The sleepovers at the M residence would take place in the basement. On most of these occasions, she would sleep on the sofaand later on the futon. Occasionally, she would also sleep on the same sofa as her friend. J.S.M. would come down and lie down besideher.

He would caress her in a sexual manner and in turn, he would have her touch him in a sexual manner. She would be wearing shortsor pajamas. He would touch her over her clothing on her vagina. On one occasion he touched her under her clothing. He would have hertouch his penis and masturbate him. Sometimes he would ejaculate.

She claims that when he was lying beside her she could smellalcohol on his breath. [7] In addition, there were several instances where the complainant performed oral sex on J.S.M. when delivering newspapersearly in the morning. [8] Although the sexual contact ended when she was around thirteen years of age, J.S.M. continued to have contact with thecomplainant via social media. Although no evidence was established as to exactly what was contained in the earlier messages on MSNmessenger, it is evident that the social contact continued on Facebook.

The evidence discloses that the contact occurred between at least2010 and 2013. Prior to this date, the MSN messages were deleted as were some of the Facebook messages. [9] The Facebook exchanges centered on K.T.’s future educational and employment plans, whether she had a boyfriend, whethershe smoked or drank and apparently, other non-controversial matters. J.S.M. also provided advice about [,,,] programs […]. In themessages, J.S.M. also makes reference to or comments about her sex life and refers to secrets they shared.

In K.T.’s opinion, the onlysecrets that they would have shared were about the sexual activity when she was a child. [10] I refer to excerpts of these messages: J.S.M.: “You and I have had a special relationship over the years and you’re going to be fine.” [11] To which she replied that she hopes; and further: SM: “Was it hard to break of… Your second great love”. [12] The complainant believes that this was J.S.M. referring to himself as the first love; J.S.M. also stated that he hoped that he hadnot been a negative experience for her and that he considered her to be very special person. [13] During one of the exchanges that he had with the complainant, he wanted to guard against her sharing the messages with anyoneoutside.

At one point, she told J.S.M. that she would not tell anyone anything.

[ 14 ] He inquired when the first time was that she saw his cock. She indicated that that was a long time ago. She did not know that she remembered. [ 15 ] J.S.M. told her that she was really interested in it and asked whether that was okay to say. He also said that it was an accident but then stated that he was interested. He queried as to what her feelings were at that time. [ 16 ] He told her that she was someone who was very special to him and she told him that she was only eighteen.

He also added that she was the only one with whom she shared stuff with. [ 17 ] The complainant asked him how she could be so special to him, to which he replied “This sounds stupid” but she was. Then he added that he hoped that she didn’t feel any pressure to do anything that she did not want to do. He said it was just something special. [ 18 ] He wanted her to delete their conversations. [ 19 ] He expressed concern about anyone else using her phone. [ 20 ] In a later conversation, he stated that he was glad that she trusted him, as trust was important.

He added that “we do have our secrets”. [ 21 ] He inquired whether she’d ever told anyone, although there was no direct response to that question. [ 22 ] He asked whether she was dating anyone and also wanted to know about “BJ’s”, asking her when that starts. [ 23 ] He asked who her “first one” was. The complainant then told him that she was “scared to live” because of what he had done but now she was older and understood what happened. She added that she had to deal with it in everyday life and she hated it.

J.S.M. asked what he could do to help and the complainant replied that he had done enough. [ 24 ] The complainant then said that he knew the whole time it was wrong and she was twelve years old and that wasn’t he wondering if it had not scarred her for life. J.S.M. told her that it never happened to anyone else, although she did not accept that. She then reminded him what it did to her and that it hurt her. She said she would have been a better person if it had not happened because she would have more confidence. She related to him that he had no idea what she had been through.

She stated that it “sucks big time” and that she felt locked in the box and she had done something wrong to deserve this. [ 25 ] She told him that she would need closure in order to move on and that she had a hard time understanding. [ 26 ] She reminded J.S.M. that he had a family and that her best friend was his daughter. In the final conversation she had with J.S.M., she asked him why he had done this to her, to which there was no response. [ 27 ] I have reviewed the presentence report. [ 28 ] J.S.M. is married and the father of two adult daughters. He is 61 years of age. He is retired. His wife is employed.

He is in good physical health with the exception that he has been diagnosed with high cholesterol, high blood pressure and asthma, and is presently being assessed for a knee replacement. He is a social user of alcohol. He claims that alcohol has never been a problematic activity for him and say his use of alcohol was limited to a glass of wine with dinner or using alcohol when he had a few beer while watching a sporting event with friends. He has many friends who think highly of him. His hobbies included coaching sports, fishing, reading and watching documentaries as well as exercising.

A coworker described J.S.M. as easy-going and approachable and friendly. When he was employed, he was […]y. Members of his family, his siblings and coworkers have never reported or observed any

inappropriate behavior from the offender. [ 29 ] J.S.M. holds a Bachelor of […]. While employed, he was […]t. His employment included […]. While employed, he had never been fired from a job or disciplined for his conduct or performance. J.S.M. claims that he excelled in all of his jobs. In addition to his employment, he has volunteered in the community and for an extensive period of time as basketball coach with […].

He also sits on a number of boards in the community, including […]. [ 30 ] J.S.M.’s family is very supportive and were shocked by this involvement in legal proceedings. [ 31 ] J.S.M. maintains his innocent and does not accept responsibility for the offences, claiming that the allegations came out of nowhere. He maintains that he spent too much time with his children, that this happened as a result of being close to his children and that he was in a compromising situation where it would be easy for someone to make this up.

He acknowledged that the complainant was a friend of his daughter. [ 32 ] J.S.M. has no previous correctional history of any kind. [ 33 ] I also reviewed the victim impact statement of the complainant and listened attentively as she read it. [ 34 ] The impact of these offences on the complainant is critical and long-lasting. She mentions that she was scared to tell anyone. Her best friend was J.S.M.’s daughter. She kept it a secret. Her parents could not understand her behavior – happy one day and sad the next. Sometimes it would last for hours. At ten years old, she had thoughts of killing herself.

She stated that between the ages of seven and eighteen, she was a complete mess; sad and discouraged with very low self-esteem. She felt that she was never good enough and was hiding from everyone. She attempted to start running and ran every night. She found therapy. She looked back at the misery he had caused her and all she could do was shake her head in shame as she hadn’t told anyone sooner. She states that she had to grow up fast and the fact that her childhood innocence was taken away really hurt her.

She maintains that she had very low standards when it came to relationships and did not expect much and kind of just went with what she got. The conversations that J.S.M. had with her were very inappropriate. [ 35 ] She concludes her statement in saying that it’s scary to think the people who you really trust the most can be the ones who surprise you with the truth. [ 36 ] When contacted, Sgt. K.

Routledge stated that due to the nature of the offences, J.S.M. is a concern to the community. [ 37 ] Let me comment on the law in Canada as it relates to the offences of sexual interference and invitation to touch in a sexual manner. The maximum imprisonment that the law authorizes me to impose for such crimes is ten years. In each instance, there is a minimum period of incarceration of 45 days. These minimums were in effect at the time of these offences. [ 38 ] Both counsel agreed that the conviction for sexual assault should be subject to stay pursuant to the principle of res judicata as decided in Kienapple .

All of these incidents arise from the same circumstances, between the charge of sexual assault on the one hand and two remaining counts on the other hand. There is no additional or distinguishing element that goes to the guilt of the accused as contained in the offence for which the conviction is to be precluded by the rule. [ 39 ] It is my view that the conviction for sexual assault carries a lesser penalty because sexual assault does not carry a minimum period of incarceration of 45 days.

However, I am of the view that the charges of sexual interference and invitation to touch in a sexual manner would not bring Kienapple into play. Submissions of the parties [ 40 ] The Crown submits that this case falls within the mid-range of sentences and seeks a global sentence of between four and five

years’ incarceration, followed by probation of four years or less, as appropriate. The Crown also seeks ancillary orders under CriminalCode ss. 109, 487.051, 490.012-490.013, and 161. [41] Defence counsel recommends a sentence of eighteen months for the s. 271 offence and eight months for s. 151 and 152, to beserved concurrently, followed by three years’ probation. As discussed above, Defence counsel has noted that the Kienapple principleshould apply to a stay of s. 271 and recommends incarceration followed by three years’ probation.

If the court does not stay the s. 271conviction, the defence recommends that the sentence of s. 271 be served in the community pursuant to s. 742.1. The defence has notmade any representations regarding the ancillary orders. [42] The general purpose of sentencing is set out in Criminal Code s. 718:

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; and

f) to promote a sense of responsibility in offenders and acknowledgement of the harm done. [43] Sentencing is not an exact science. It is an exercise of judgment taking into consideration relevant principles, the circumstancesof the offence and the circumstances of the offender. [44] Additional provisions of the Criminal Code provide that a sentence must be proportionate to the gravity of the offence and thedegree of responsibility of the offender and that I have to take into account all aggravating and mitigating circumstances.

Specificcircumstances here would be abusing a person under the age of 18 years and abuse of a position of trust or authority in relation to thevictim. [45] In addition, the sentence should be similar to the sentences imposed on similar offenders for similar offenses committed insimilar circumstances. [46] The aggravating factors in this matter are the following: • the offender abused a person under the age of eighteen years, sixteen in this case; • he was were in a position of trust or authority; • he abused the victim over a period of years; • he caused psychological harm to the victim; • he continued to groom the victim for a considerable period after the abuse ceased; • he directed her to delete the messages he was sending to her.

The mitigating factors are the lack of any criminal record and the offender’s age. [47] I refer to the case of R v. HCD, 2008 NSSC 246, a case decided by Justice Warner, where he summarized what are mitigatingand aggravating factors affecting sentencing on a sexual assault case and he listed them as follows at para. 15: 15 A useful starting point for the factors affecting sentencing in sexual assaults case is found in the Quebec Court of Appeal casecalled R. v. J.L. That decision enumerated seven factors that were recently repeated by Judge Tufts in a case called R. v. S.C.C. 2004NSPC 41 , [2004] N.S.J.

No. 272 which is sometimes cited in Courts of Nova Scotia respecting relevant factors for these kinds

of offences.

a) First is the nature and intrinsic gravity of the offence, which is affected, in particular, by the use of threats, violence orpsychological manipulation;

b) Second is the frequency of the offence and the time period over which it was committed;

c) Third is the abuse of trust and abuse of authority involved in the relationship between the offender and the victim;

d) Fourth is any disorder underlying the commission of the offence, whether the offender had psychological difficulties, disorders ordeviancies and other similar factors;

e) Fifth is whether the offender has previous convictions of a nature similar to those which are before the Court;

f) Sixth is the offender's behaviour after the commission of the offence such as confessions, assistance in the investigation, immediateinvolvement in a treatment program, potential for rehabilitation, and financial assistance, as well as empathy and remorse for the victim;and,

g) The time between the commission of offence and the guilty plea or verdict as a mitigating factor depending on the offender'sbehavior. [48] I am, by law, required to consider cases that have been previously decided in order to determine whether there are cases withsentences dealing with similar offences and similar offenders. Obviously, this does not yield a perfect result because it is difficult to findprecisely similar cases with similar circumstances or similar accused. [49]

Section 718.01 provides for primary emphasis on denunciation and deterrence where the offence involves the abuse ofchildren. This provision was enacted in 2005; however, this principle has a long history. [50] In R v. Hawkes (1987), (NS CA), 81 N.S.R. (2d) 156, our Court of Appeal noted that for sex crimes againstchildren, “deterrence must be both specific and general, with emphasis on general aspects of deterrence. General deterrence has beenrecognized by Nova Scotia Courts as an overriding consideration: see R. v.

A.P.S. (1999), (NS SC), 178 N.S.R (2d)176 (S.C.) [51] I have also considered the extent of the range of sentence in the decision of the Nova Scotia Court of Appeal in R v. E.M.W.,2011 NSCA 87, where Fichaud J.A. stated at paragraph 30: 30 Moving downward from the high end of the range in the cases, one sees incarceration sometimes more and sometimes less thantwo years, depending on the severity of the circumstances, for sexual assaults on children without intercourse: (

a) Six years global for sexual offences, including digital penetration and attempted but unsuccessful intercourse with the offender'sstepdaughter, committed over time while the victim was 10 to 14 years old [R. v. J.B.C., 2010 NSSC 28]. The Court (para. 24) notedthat, under the caselaw, for a crime of this nature the offender's prior clear criminal record "is not accorded undue significance". (

b) Five years for various sexual assaults including digital penetration, not involving intercourse, over a period of years on theoffender's stepdaughter. D.B.S. (

c) Two sentences of three years each (counts 1 and 5) for indecent assault and gross indecency without intercourse against a child to

whom the offender had a parental relationship. He was given additional sentences for other offences. The court (para. 17) adopted the statement of Justice Bateman in R. v. Weaver, [1993] N.S.J. No. 91 that a clean criminal record "does not relieve the requirement of a lengthy prison term for sexual offence against children". R. v. R.H., [2005] N.S.J. No. 212 (S.C.) . (

d) Three years for one incident of sexual assault without intercourse on offender's four year old daughter. R. v. E.E.C., 2005 NSSC 3 . (

e) Three years for indecent assault without intercourse with the offender's daughter over a period of three years when she was 8 to 11 [R. v. I. (Part 2), [1996] N.S.J. No. 153 (S.C.) ]. The offender had no criminal record and was unlikely to reoffend. (

f) Sentences of thirty months and twelve months for two counts of sexual and indecent assault on the offender's two adopted sons. R. v. A.P.S. , [1999] N.S.J. No. 242 (S.C.) . (

g) Two and one half years each (concurrent) for two counts of sexual assault and sexual touching, including attempted but unsuccessful intercourse, of the offender's 15 to 18 year old stepdaughter. R. v. N.J.B., [2003] N.S.J. No. 225 (S.C.) . (

h) A larger global sentence (with remand credit) that included twenty eight months each (concurrent) for two offences of sexual touching and invitation to sexual touching over a period of time of an 11 to 14 year old girl who was unrelated to the offender. D.W.B. (

i) Two years exclusive of remand time plus three years probation for a number of incidents of sexual assault, without intercourse, over time on the offender's under aged daughter. The sentence was further to a joint recommendation after a guilty plea. The judge said that, if credit for remand had been considered, the sentence before credit would have been two and one half years (para. 38). R. v. H.C.D. , 2008 NSSC 246 . The judge said: 40. The joint recommendation, in terms of denunciation and deterrence, is within the range for offences of this kind. It could have easily been much higher; it is unlikely it would have been less than two years as opposed to more than two and a half years. (

j) Four years and five years on several counts of sexual assault that included intercourse with his older daughter, plus eighteen months for sexual touching without intercourse of his 9 to 12 year old younger daughter. G.O.H. The Court of Appeal said (para. 10): It is impossible to speak of these crimes without using pejorative adjectives.

This Court, and others, has repeatedly emphasized that sexual abuse of near helpless children (which is the case when the abuse of each daughter began) by adults upon whom they should be able to rely for protection, should incur sentences which may deter not only the perpetrator but others who may be so inclined. This proposition is exacerbated when the perpetrator, as here, is a parent, in a position of trust. Society's revulsion of such conduct must be demonstrated.

The fact that the appellant is a first offender, at least in respect to the older daughter and may not need specific deterrence is not to be granted undue significance in crimes of this nature. General deterrence must be emphasized. (

k) Six months incarceration plus two years probation for several incidents of sexual touching of offender's 9 to 11 year old granddaughter. The Court of Appeal said the sentence was not unfit under the appellate standard of review. R. v. D.N.M., [1992] N.S.J. No. 356 (C.A.) . (

l) Four months plus one year probation for two counts of fondling the offender's daughter, aged 11 to 13. The offender was remorseful and accepting of treatment to overcome his psychological problem. R. v. E.(E.B.), [1988] N.S.J. No. 425 (C.A.) . (

m) Ten months by the sentencing judge, reduced to 90 days by the Court of Appeal for several incidents of vaginal touching the offender's 9 year old stepdaughter. The victim had not suffered psychological effects. The offender pleaded guilty and accepted responsibility. There was evidence that rehabilitation would have a positive effect. R. v. R.H.S., [1993] N.S.J. No. 489 (C.A.) . (

n) Three months incarceration plus two years probation for sexual touching of offender's 12 year old granddaughter. The offender was remorseful, and the psychologist said he was "on the right track" to rehabilitation. R. v. W.M.D., [1992] N.S.J. No. 161 (C.A.) .

(

o) Three years suspended sentence with probation for repeated sexual touching of offender's 14 year old niece. Offender was gentleand well intentioned but feeble-minded, childlike and psychologically ill. He was remorseful and willing to secure treatment. R. v.R.T.M., [1996] N.S.J.

No. 218 (C.A.). [52] It is interesting to note that in the E.M.W. decision itself, the Court of Appeal upheld the sentence of two years’ incarceration forsexual assault where the offender abused his daughter, including multiple instances of digital penetration from ages nine to eleven. [53] There are a number of other cases which I wish to refer to. These are R v. D.B.S. (2000), (NS SC), 185N.S.R. (2d) 101; R v. T.E.H.; 2011 NSCA 117; R v. J.P., 2013 NSSC 65; R v. G.K.N.; 2014 NSSC 150; and R v. R.M., 2015 NSSC 189.

These cases all involve young children, some of them related to offenders who stood in a parental relationship with the victim whileothers were simply abused by an older accused. The sentences ranged from six years to twelve months. [54] Since the Court of Appeal decision in E.M.W., there have been numerous decisions with reference to sentencing or sexualassault. However, I wish to refer to two cases in particular.

In the case of J.P., where the offender had sexually abused a child victimbetween the ages of six and twelve, the Court sentenced him to twelve months incarceration, followed by eighteen months’ probation,one year incarceration for sexual assault, one year incarceration concurrent for sexual interference and six months incarceration forinvitation to touch. The Court found that the offences involved repeated sexual conduct over a prolonged period and breach of trust bythe offender.

Given the advanced age of the accused, his financial circumstances and that he was a first-time offender who was gainfullyemployed, the sentence of twelve months’ incarceration was held to sufficiently denounce such conduct. [55] In G.K.N., the accused was convicted of six counts of interference against this stepdaughter. Incidents occurred where thecomplainant was between the ages of seven and thirteen. The accused would often masturbate in the presence of the complainant andtouch her inappropriately with his lips, penis and hands.

The accused lost his employment as a result of the charges and continued todeny responsibility for the offences. The accused had a prior, although dated conviction for related offences. Justice Cacchione imposeda total of eighteen months’ imprisonment. He stated that denunciation and deterrence were of paramount consideration and took intoaccount the fact that the accused was in a position of trust to the complainant and the young age of the complainant. The five-yearperiod over which the offences were committed was aggravating. He stated that the accused had led a productive, law-abiding life.

Rehabilitation would best be served by a longer period of supervision, which would allow for more time to properly have the accusedundergo assessment and treatment. Justice Cacchione also imposed a three-year period of probation, a DNA Order, a weaponsprohibition, a no contact order and sex offender registration. [56] I also considered the additional cases submitted by both Crown counsel and Mr. Iannetti. [57] I have to consider the aggravating factors such as the age of the victim.

In this case, the abuse started when the victim wasaround seven to eight years of age and continued sporadically until she was thirteen. At that time, J.S.M. would have been in his forties.In fact, all of these incidents occurred when the child could neither legally or factually consent to sexual activity, robbing her of herchildhood innocence. [58] J.S.M. was in a position of trust and authority when the complainant was visiting her best friend on overnight sleepovers.

Hewas the father of the victim’s best friend and therefore had authority over her when she was a guest in his house during visits andsleepovers with her friend. [59] I readily acknowledge that J.S.M. was not a parent, grandparent or step-parent to the victim.

Certainly, abuse of the hands of aparent or stepparent can be a more egregious violation of trust and authority yet this factor remains aggravating. [60] Although defence counsel maintained that the offender was not in a position of trust over the victim during the newspaperdelivery incidents, this argument does not take into account that by that time, the victim was already groomed to the extent that sexualincidents were to an extent normalized. It is clear that the offender had a long-term sexual relationship with the child who did not havethe emotional maturity to adequately process or challenge the events.

It is my respectful opinion and that to suggest the offender was nolonger in a position of trust is really to misconstrue the nature of the relationship he cultivated. [61] While there are only two counts that I am dealing with, covering a period of six years, the offences were repeated on a number

of occasions. Indeed, the single occurrence of sexual interference can ground a sentence in excess of two years. The evidence is clear thatthese incidents occurred on numerous occasions and extended over a long period of time. [62] The impact on the victim is important in assessing how grievous of the offences are. It has well been established over manycases that the child victims of sexual abuse rarely escape without severe psychological trauma. In this case, the impact on thecomplainant was severe.

She describes a hellish emotional tumult while she attempted to come to terms with what had happened and bythe continued contact initiated and maintained by J.S.M. She had suicidal ideation as early as ten years old and her self-esteem wasshattered as a consequence. It is obvious that her childhood innocence was taken from her. [63] J.S.M. chose not to testify, which is his right. Although not an aggravating factor, he cannot obtain a mitigating benefit. [64] The accused in this case does not have a prior criminal record although that is not uncommon in these types of cases.

Inaddition, the offender’s family and colleagues have attested to his character. However, this has limited weight when it involves sexualabuse of a child. [65] I also have to weigh the fact that J.S.M., on multiple occasions, directed the complainant to delete the messages he was sendingto her so that he could maintain secrecy.

When weighing his allegedly good character, I have to consider this that despite his continuedcontact with her, he did not want anyone to become aware of his obsession manifested by his internet searches. [66] I am satisfied that the offender is not likely to reoffend to the extent to which specific deterrence factors into this decision. [67] J.S.M. is currently 61 years of age. The Supreme Court of Canada has recognized that sentencing judge should be mindful ofage the offender in applying the relevant principles of sentencing. [68] Mr.

Iannetti has directed me that Statistics Canada estimates of life expectancy of 66-68 years for a male born between 1950 and1962. I am unaware of course that J.S.M. suffers from any infirmity or that his health is in poor condition. His age may be a mitigatingfactor militating against a sentence at the high end of the scale. [69] I find many similarities between this case and G.K.N. The age of the complainant, the relationship between the victim and theaccused, the nature of the charges, except that in this instance there was actual oral sex provided by the complainant, which in someinstances led to ejaculation.

Although I found that J.S.M. was in a position of trust or authority, I believe that he was one step removedfrom either being a parent or step-parent. Similarly, there was no penetration, violence or threats. The age of the accused is similar. Both the accused were from families where there was no violence, no abuse of alcohol or drugs and no physical or sexual abuse. Bothfamilies remain supportive. In G.K.N., the accused lost his employment while in this instance, J.S.M. has chosen retirement. In bothcases, the accused did not accept responsibility for the crimes and maintained their innocence.

The only difference that I managed toobserve is that in this instance it was actual oral sex and J.S.M. attempted to manipulate the victim through his various messages byoffering help, guidance and […] about her future educational endeavors. He encouraged her to maintain the secrets that they shared andto delete the messages. [70] The maximum penalty under s. 151 and 152 is ten years’ imprisonment. In both cases, in 2005, Parliament adopted a minimummandatory penalty of 45 days’ imprisonment.

The present minimum mandatory penalty is one year imprisonment for offences under s.151 and 152 of the Criminal Code; however, the new mandatory minimum was not in force at the time of these incidents. [71] Without addressing the issue of the effective date of the minimum 45 days sentence now found in s. 151 and 152, and therebyhaving to determine whether s. 11(

i) of the Charter is relevant, it is my view the appropriate approaches set out in R v. L.F.W, 2000 SCC6, where the Supreme Court agreed with the majority of the judgment in the Newfoundland Court of Appeal that sexual offences againstchildren merit incarceration except in the rarest and most exceptional cases. [72] Sexual abuse of children in society is particularly repugnant and the general deterrence and denunciation afforded by a custodialsentence are difficult to replicate through conditional sentencing.

I am reminded that the premeditation, duration, frequency and natureof the exploitation deserves strong rebuke to clearly send the message that the Court will not tolerate this kind of behavior. I am mindfulof the case of R v. Winters (1999), 1999 NSCA 49 , 174 N.S.R. (2d) 83 (C.A.), where the Nova Scotia Court of Appealapproved the trial court decision, a 35 year old offender engaged in sexual acts, including sexual intercourse with her son’s teenage

friend over the course of one month and a conditional sentence was imposed. [ 73 ] The appropriate sentence that I impose on J.S.M., taking into account the various aggravating factors and the mitigating factors of age and the lack of criminal record is a period of two years less one day on count 2 and twelve months on count 3, to be served concurrently. [ 74 ] I also impose a period of probation of two years with the following conditions: • To keep the peace and be of good behavior; • Appear before the Court when required to do so by the Court; • Notify the Court or the Probation Officer in advance of any change in name or address and promptly notify the Court or the Probation Officer of any change, and any change of employment or occupation; • Report to a Probation Officer within three days after the expiration of your sentence of imprisonment and when required in the manner directed by the Probation Officer or someone acting in his or her stead; • Remain in the province of Nova Scotia unless you receive written permission to go outside the province from the Court or Probation Officer; • Not to take or consume alcohol or other intoxicating substances; • Not to consume drugs except in accordance with a medical prescription; • Not to own, possess or carry a weapon, ammunition or explosive substance; • Perform 100 hours community service work under the supervision of your Probation Officer or someone acting in his or her stead.

The place and time when the work is to be performed is to be arranged with your Probation Officer or alternatively designated by your Probation Officer.

All the Work is to be completed to the reasonable satisfaction of your Probation Officer not later than the termination of your Probation Order; • Not to have any contact or attempt any contact any time with the complainant for any reason, directly or indirectly unless specifically authorized in writing by the Court; and • Attend any mental health assessment and counselling as may be directed by your Probation Officer. [ 75 ] I also grant the following ancillary Orders: •

Section 109 – firearm prohibition 10 years; •

Section 487.051 – Order for Collection of DNA Sample will be granted; and •

Section 490.012 – Order to comply with Sex Offender Information Registration Act (SOIRA), for life. [ 76 ] I decline to grant an order under s. 161 of the Criminal Code . J.S.M. has no previous conviction of any kind, including any conviction for sexual offences, nor is there any suggestion or risk that he will re-offend. It is my view that it is unlikely that J.S.M. will pose a continuing threat to children. [ 77 ] I impose a victim surcharge of $100. ___________________________ Justice Arthur LeBlanc