R. v. L.W., 2018 ONCJ 399

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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, 212, 212, 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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct 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 complainant of the right to make an application for the order; and (

b) on application made by the complainant, 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. L.W., 2018 ONCJ 399 DATE: 2018 06 12 COURT FILE No.: Newmarket 16 07222K BETWEEN: HER MAJESTY THE QUEEN — AND — L.W. Before Justice David S. Rose Heard on May 31, 2018

Oral Reasons for Sentence released on May 31, 2018; Written Reasons for Sentence released on June 12, 2018 C. Goodier................................................................................................... counsel for the Crown D. Reeve....................................................................................... counsel for the accused L.W. David S. Rose J.: Overview [1] On January 25, 2018 I found L.W. guilty of Sexual Interference with a person under 16 years old, namely H.C., between 1September 2011 and 1 February 2013, and also Sexual Assault against H.C. in the same time period.

In accordance with the principles ofR. v. Kienapple, (SCC), [1975] 1 S.C.R. 729, the Sexual Assault count was stayed. The conviction was thereforeregistered under s. 151 of the Criminal Code. The trial had proceeded as an Indictable one, the Crown having made that election, andL.W. having elected a trial in this Court. [2] Two matters were before me on May 31, 2018: an Application under s. 11(

b) of the Charter to stay the case for unreasonabledelay; and a Sentencing. I dismissed the 11(

b) Application for oral reasons and heard sentencing submissions. At the end of the day Isentenced Mr. W. to 90 days in jail. These are the written reasons for those decisions. History of the Proceedings [3] Mr. W. was charged with Sexual Assault and Sexual Interference in September of 2016. The information was sworn to on 22September 2016, and covers allegations from September 1, 2011 to February 1, 2013. Mr. Reeve appeared as counsel on the firstappearance and the case was judicially pre-tried and ready to be set down for a trial in this Court by December 15, 2016.

Trial dates ofNovember 27-29, 2017 were then set. [4] The case appeared before me on Monday November 27, 2017 for commencement of the trial, but a disclosure issue arose. Thecomplainant had been interviewed on Friday, November 24, 2017 and provided some additional information. The Crown disclosed thatto Mr. Reeve on November 26 – only two days later, but still the day before the trial. The new statement spoke to issues of grooming onthe part of Mr. W. Because of the new disclosure the case was adjourned until January 8, 2018 to commence.

The evidence wascomplete by January 10, and reasons for judgment were released on January 25. Mr. W. was found guilty of sexual interference under s.151 of the Criminal Code. There was no waiver of any delay by the defence. [5] The period from laying the Information to the finding of guilt is therefore 16 months plus 3 days, which is well within the 18month guideline announced the Supreme Court of Canada in R. v. Jordan, 2017 SCC 31. Given that calculation Mr. Reeve fairlyconceded that the period up to the time of the finding of guilt does not violate Mr. W.’s 11(

b) rights. [6] On January 25, 2018 a pre-Sentence report was requested and the case went over to April 3, 2018 for Sentencing. On that daya legal issue came up flowing from the fact that the offence for which I convicted Mr. W. had a date starting in 2011 and ending in2013. In March of 2012 Parliament amended the penalty provision of s. 151 to raise the mandatory minimum sentence from 45 days, to 1year.

The Safe Streets and Communities Act , S.C. 2012, c. 1, replaced the previous 45 day minimum sentence of imprisonment forsexual interference where the Crown proceeded by Indictment with a minimum 1 year jail sentence. That provision was proclaimed inforce on August 9, 2012. [7] On January 25 Mr. Reeve asked for a pre-sentence report, and Ms. Goodier needed time to get victim impact statements. Inthis building it takes about 8 weeks for an out of custody pre-sentence report. Sentencing was therefore adjourned to April 3. [8] The case was ready for sentence on April 3, 2018. The pre-sentence report was completed.

The victim impact statements wereread to me in Court and filed. The offender had filed supplementary character letters. But another issue arose on April 3, a legal one. Mr. Reeve sought to rely on recent decisions which struck down the mandatory minimum sentence under s. 151. The Crown argued thatthe previous mandatory minimum 45 day sentence was appropriate, prior to amendment of the penalty provisions which raised themandatory minimum to 1 year. This was struck down in a number of decisions by the Superior Court, see for eg R. v. Hussein, 20174204 (Code J.).

The legal issue was, given that the delict period governing this case covered both before and after the increased penaltywhich was itself struck down, whether the previous 45 day minimum sentence was appropriate. This was the Crown argument, and Iasked for written submissions to help me decide that. The Crown argument was something of a new twist to the case but it was not onewhich is entirely frivolous. The only reason the case could not be completed on April 3 was the additional legal argument.

[9] Mr. W. has been on release up to May 31, 2018. Mr. Reeve does not allege any specific prejudice to him. Sentencing Facts [10] After trial I found that the Crown had proven that L.W. kissed the complainant on the lips several times over that time period,although there is no precision on the exact number. She was 10 years old when this started. L.W. would have been 79-80 years old atthe time. He is now 85 years old. [11] A significant component of the trial was evidence that L.W. is a violin teacher, and H.C. one of his students. The kissing tookplace at L.W.’s condominium where he taught all of his students.

Initially H.C. had her mother, also an accomplished musician, in theroom, but later the lessons took place alone. There was also an allegation that L.W. touched H.C.’s breast, but I had a reasonable doubtabout that limb of the charge. [12] There was no dispute at trial that L.W. teaches musicians to play at the elite level. Whether H.C. was one of those elitemusicians was one of the issues which came up, but for present purposes it is sufficient to find that L.W. has taught many persons to playviolin on the world stage.

Some of those came to court to testify about how instrumental L.W. was in preparing them for further musicalstudies at elite schools or playing in top orchestras. I minimized the weight of the character evidence that they gave because none ofthem were asked by L.W. if he could kiss them on the lips as he admitted asking H.C. I found that they were treated differently than thecomplainant in that regard. That said, for sentencing they provide a basis on which I can conclude that L.W. played a valuable

part intraining young persons to play the violin at a very high level. There is no evidence, or suggestion, that L.W. kissed any of his otherstudents as he did H.C. His conduct as against H.C. is isolated. [13] There was evidence at trial about pedagogical disagreements between L.W. and H.C.’s mother. There was also evidence thatL.W. spoke of wanting to have oral sex with H.C. These are aggravating factors. [14] H.C. read her victim impact statement (VIS) to me in Court. She was 17 at the time of sentencing, and her Grade 12 graduationwas imminent. In it she describes being a survivor.

Clearly she has suffered pain herself and to her family. She described L.W. asdepraved, a liar, a predator, a narcissist, a revolting human being and a sexual deviant. As she put it, “You stole my innocence, forcingme to partake in acts that disgusted me and confused me”. Her VIS is quite strongly worded. [15] There are aspects of H.C.’s VIS which I must disregard. Her comments about pre-trial resolution discussions between L.W.and the Crown give me concern that otherwise privileged discussions are being relayed back to witnesses. I have concerns that thesecomments go far beyond the scope of a VIS.

I will disregard them. Similarly, H.C. recommends to me that L.W. “deserve(

s) themaximum punishment possible in this criminal court”. While H.C.’s input in how this has affected her is quite helpful, her proposal as tosentence is not. [16] I commend H.C. for emerging from this experience. It is clear from her VIS that her musical career has continued its steepupward trajectory. She is now the concertmaster of a prestigious Youth Orchestra and has recently won musical competitions here andabroad. [17] H.C.’s mother also filed a VIS. It is also very strongly worded. She speaks of being destroyed by L.W. who she describes as a“slimy narcissistic 80 year old man”.

She also recommends that I do not impose home confinement, and instead impose the maximumjail time. I accept the Crown’s direction to disregard her recommendation as to penalty, as well as her comments which tend todehumanize the offender. H.C.’s father also filed a VIS which has similar language. To be clear, the VIS content which describes howthis has affected each of the family members is quite helpful and will be given full weight. They are entitled to share that experiencewith the Court as part of the sentencing process. [18] Mr. W. is now 85 years old. He has been a musician since he was very young.

He started teaching violin when he was 18 yearsold in Russia. He is a native of […]. He was an elite level musician here in Canada, and taught many musicians to perform at thatlevel. I have heard from many of them, both at the trial and in the dozens of letters filed at sentence. They are uniformly positive aboutMr. W.’s effect on their career. They describe him in quite positive terms. It is clear that Mr. W. has given much to the classicalmusical community here in Canada. [19] The pre-sentence report discloses that Mr. W. has no prior involvement in the criminal justice system.

He has had two cardiacbypass surgeries. His various orthopaedic ailments confine him to a wheelchair. He takes many medications for these issues. [20] There is no evidence of remorse. This was clear in Mr. W.’s statement to me after sentencing submissions were complete. There is no acceptance of responsibility. First Issue – the 11(

b) Application [21] While the Court was quite clear in R. v. Jordan 2016 SCC 27 that the presumptive time limits – 18 months to completion of thetrial in this Court – were bright lines, the Court recognized that those time limits might not apply to certain sentencing proceedings. Infootnote 2 of Moldaver J.’s decision in Jordan he said that, This Court has held that s. 11(

b) applies to sentencing proceedings (R. v. MacDougall, (SCC), [1998] 3 S.C.R. 45(S.C.C.) ). Some sentencing proceedings require significant time, for example, dangerous offender applications or situations in whichexpert reports are required, or extensive evidence is tendered. The issue of delay in sentencing, however, is not before us, and we makeno comment about how this ceiling should apply to s. 11(

b) applications brought after a conviction is entered, or whether additional timeshould be added to the ceiling in such cases. See also R. v. Tsega, 2017 ONSC 3090 (Aitken J.); R. v. Swanson, 2017 ONSC 710 (Smith J.); R. v. Patel, 2017 ONSC 5827(Sutherland J.); R. v. Haniffa, 2017 ONCJ 781 (Kenkel J.).

[ 22 ] In Patel , Sutherland J. heard an 11(

b) Application after a conviction for Dangerous Driving had been entered. The sentencing had been adjourned just over 2 months because of the need for a pre-sentence report. While Sutherland J. dismissed that Application on the basis of defence waiver, he went on to provide a list of factors to be considered in determining 11(

b) Applications post-conviction. I found them to be quite helpful. They are:

i) total length of the period of time between charge and sentence; ii) whether the accused is in custody and the length of time the accused has been in custody; iii) the gravity and substance of the conviction in contrast to the length of time the accused has been in custody; iv) the reason for the length of time required by the Court to deliberate and render reasons;

v) the time required by both the Crown and defendant to prepare for the sentencing hearing; vi) the necessity of pre-sentence report and victim impact statement; and vii) whether the length of time is a marked departure in the specific jurisdiction of the proceeding. [ 23 ] In this case a total of 20 months and week has passed from the time the Information was sworn to, and imposition of sentence. Mr. W. has been on bail since the time of his arrest in September of 2016.

The delay in imposition of sentence was caused by three things: the need for a pre-sentence report, victim impact statements, and legal submissions about mandatory minimum sentences. I find that those were obtained promptly. It is clear to me that there was no delay in Probation drafting their pre-sentence report, or the Crown in obtaining victim impact statements. Once the legal issue arose both Ms. Goodier and Mr. Reeve worked quite diligently to make their arguments in writing so that by May 31 the oral submissions were quite truncated.

I also find that the pre-sentence report was important to imposition of an appropriate sentence given the facts heard at trial and Mr. W.’s age. If the defence had not requested one I would have wanted one. Lastly, the delay from the finding of guilt to the imposition of sentence was 4 months, is only a slightly longer delay than most sentencings in Newmarket. That period of time nowhere approaches a marked departure. For these reasons the 11(

b) Application is dismissed. Second Issue – What is the Appropriate Sentence? [ 24 ] The aggravating factors in sentencing Mr. W. include:

i) The breach of trust as between teacher and 12 year old pupil; ii) The length of time that the kissing took place, which was approximately 2 years; iii) The fact that Mr. W. discussed oral sex with H.C. which is concerning; [ 25 ] The mitigating factors include:

i) His age; ii) His lack of criminal antecedents; iii) His contribution to the musical community over the last several decades; iv) His poor health;

v) That the nature of the sexual interference was confined to kissing, which was at the lower end of invasiveness of illicit sexual contact. Is there a Mandatory Minimum Sentence of Imprisonment? [ 26 ] The Crown asked me to find that, in law, a 45 day minimum custodial sentence was in effect because that was the sentence before Parliament increased the mandatory minimum to one year. The one year mandatory minimum sentence has been struck down by order of the Superior Court. A history of that jurisprudence is authoritatively summarized in R. v.

Hussein, 2017 ONSC 4204 (Code J.), and there is no need to repeat it here. Where there is no mandatory minimum sentence of imprisonment by order of the Superior Court, it is not in my jurisdiction to then ‘read up’ s. 151 (

a) to reflect a previous mandatory minimum sentence of imprisonment which was otherwise Constitutionally sound; see R. v. S.A., 2016 ONSC 5355 (Del Frate J.). Put bluntly, once the Superior Court struck down the one year mandatory minimum there is nothing for this court to read down until an Appellate Court reverses Hussein (supra) et al., or Parliament chooses to amend the law. [ 27 ] The Crown’ s argument in favour of a 45 day minimum mandatory sentence has another insurmountable obstacle in s. 11(

i) of the Charter, which is, 11. Any person charged with an offence has the right (

i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment. [ 28 ] On its face, the text of s. 11(

i) seems to squarely address the Crown’s argument. Mr. W. was found guilty of an offence which carried a 45 day mandatory minimum sentence of imprisonment. In August of 2012 Parliament replaced that penal provision with a 1 year mandatory minimum sentence, but that mandatory minimum has been struck down in entirety. Any 45 day mandatory minimum

sentence of imprisonment has therefore been varied by order of the Superior Court to one of no mandatory minimum at all. [29] As The Supreme Court of Canada recently found, s. 11(

i) is grounded in fundamental rule of law considerations inherent in aliberal democracy; see R. v. J.(K.R.), 2016 SCC 31. Laws should generally not operate retrospectively (J.(K.R.) at para. 23 – 30), and togo back to the 45 day mandatory minimum which was replaced by Parliament in 2012 would do just that. The Crown argument cannotsurvive s. 11(

i) scrutiny. [30] On May 31, 2018 I imposed a 90 day sentence of imprisonment on Mr. W. for reasons provided here, so the legal argumentabout whether there is a 45 day mandatory minimum jail sentence is admittedly moot. Sentencing an Elderly Offender [31] One of the challenges presented in this case is that of sentencing an elderly offender. As Ruby et al put it, “The age of anoffender, particularly past 60 years, is a serious factor to be considered in mitigation, especially where it is combined with evidence of good character” Ruby, Chan, Hassan, and Enenajor Sentencing 9th ed. LexisNexis 2016 at page 293. Mr.

W. is elderly and in failinghealth. Between the finding of guilt and imposition of sentence he sent me communication in the form of a posted letter – by-passing hislawyer. I sent it directly to Mr. Reeve unopened, and copied Ms. Goodier with the cover letter to inform her that this had happened – so Idon’t know what he wanted to tell me directly. In making a pre-sentence statement Mr. W. repeated his testimony in part. It would betoo narrow to see his pre-sentence comments to me in Court as merely a denial of responsibility. He seemed to me a bit confused aboutwhat I was about to do, namely impose sentence.

He has been ably represented throughout by Mr. Reeve. Yet I have concerns that he isshowing clear signs of cognitive decline.

No issue was raised throughout these proceedings that he was otherwise fit to stand trial, but Iwould be remiss if I did not find that he is in that cognitive condition – as many 85 year old persons are. [32] Whereas Parliament has clearly turned its mind to how to deal with offenders who are younger than 18 years old on the basis oftheir lack of cognitive development, it is incongruous that there is no legislative enactment about how to sentence elderly offenders whohave similar cognitive limitations, although for very different reasons.

Part XXIII of the Criminal Code has nothing equivalent tosentencing provisions of the Youth Criminal Justice Act which mitigate the effects of a sentence on a person under the age of 18. [33] In R. v. W. (A.G.) (2000), (ON CA), 130 O.A.C. 78, a majority of the Court of Appeal upheld a non-custodialsentence for an elderly offender who was convicted of incest and sexual assault.

The facts were historical and the offender was, in theeyes of the sentencing Court “a 78 year old hapless, pathetic, feeble man." The sentencing judge concluded that a custodial sentencewould amount to a death sentence because of deteriorating health. Abella J. in her dissent, would have overturned the sentence on thebasis that the seriousness of the offence outweighed the mitigating effects of declining health of the offender. In her dissent, Abella J.pointed out that the Court of Appeal had upheld lengthy custodial sentences for elderly offenders convicted of serious sexual offences.

From this, I find that the mitigating effects of the advanced age of an offender must, in each case, be balanced against the aggravatingfactors including nature of the conduct. [34] I therefore find that, in sentencing Mr. W. I must consider his age and cognitive decline carefully as a mitigating factor. It mustnot be glossed over. In sentencing Mr. W., qua octogenarian, I consider the current state of his health, both physically and mentally, hisrequirement for ongoing care, his level of responsibility due to mental acuity, and the prospect that a custodial sentence may have himdie a natural death in jail.

Sentencing Offenders for Sexual Interference [35] Sentencing decisions for sexual interference display a wide range of dispositions. At one end is the non-custodial sentence in R.v. J.G., 2017 ONCJ 881, where the age difference between the offender and victim was only 5 years and 35 days. At the other end is theegregious sexual violation of a young person by a predatory person in authority which leaves scarred victims in his wake. That conductattracts mid to upper single digit penitentiary terms; see R. v. D.D. (2002), (ON CA), 157 O.AC. 323; R. v. D.M.,2012 ONCA 520. In R. v. R.S., [2017] O.J.

No. 1096, Olver J. gave an 84 year old offender a 12 year sentence for repeated sexualviolations of three young complainants over 9 years. The delicts included forced intercourse, fellation and masturbation. Therefore, themitigating effects of age, as in R.S., can sometimes be of minimal significance when balanced against strong aggravating factors. [36] At the lower end of the spectrum are cases where the sexual touching is not as invasive as cases such as R.S. (supra). Forexample, in R. v.

S.A., 2016 ONSC 5355, Del Frate J. imposed a 90 day intermittent sentence for a 45 year old offender who bothtouched the complainant underneath her underwear and on her vagina, and later discussed having sex with her and touched her on theshoulder. In R. v. T.D., 2011 ONCJ 106, the offender received a 14 day sentence after pleading guilty to sexually touching his 15 year olddaughter under her underwear on her breast and buttock area. [37] This case engages the youth of the victim and breach of trust as aggravating factors in s. 718.2 of the Criminal Code.

Section718.1 applies to push deterrence and denunciation to the forefront of sentencing objectives. Because of these considerations, a custodialsentence is called for. [38] A just sentence in this case must balance the aggravating circumstances, principally the breach of trust component and thesexual nature of the kissing against the many mitigating factors. This is not an exercise in precision. I would impose the maximumintermittent sentence – 90 days – in order to achieve all required sentencing objectives.

Anything beyond that would be crushing to Mr.W. and I find would be unnecessary to achieve the required sentencing goals. [39] There will be a SOIRA Order for 20 years. Sexual Interference is a Primary designated offence under s. 487.04, and Mr. W. willprovide a sample of his DNA for submission to the DNA databank. There will be a s.161 order for 10 years. [40] Once Mr. W. completes his sentence he will be placed on probation for 2 years. The terms will be as outlined as in the PSR,namely:

- Report to a Probation Officer as directed. - No contact directly or indirectly with H.C. or any member of her immediate family; - Not to be within 500 metres of any place known to be the residence, school, employment or anywhere else H.C. or her family frequents is known to be; - Do not seek or obtain any paid or unpaid activity with anyone under the age of 16; - Not to be in the company or communicate with anyone under the age of 16 years; - Do not attend any public park, public swimming area, daycare, school playground or community centre where persons under the age of 16 are expected to be; - Attend and actively participate in any counselling or rehabilitative programs as directed by the Probation Officer, and sign any releases necessary to monitor attendance and completion of those programs, and provide proof of completion of any assessments or counselling or rehabilitative programs.

Released: June 12, 2018 Signed: Justice David S. Rose