R. v. Fones (D.), 2012 MBCA 110

Citation: R. v. Fones (D.), 2012 MBCA 110 Date: 20121206 Docket: AR 11-30-07639 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Freda M. Steel Madam Justice Barbara M. Hamilton BETWEEN : ) L. J. W. Tailleur HER MAJESTY THE QUEEN ) for the Appellant ) Respondent ) C. A. McDuff and ) A. Y. Kotler - and - ) for the Respondent ) ) Appeal heard: DAVID RICHARD FONES ) December 13, 2011 and ) October 19, 2012 (Accused) Appellant ) ) Judgment delivered: ) December 6, 2012 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that could disclose the identity of the complainant(

s) or a witness(es) (see s. 486.4 of the Criminal Code ). HAMILTON J.A. 1 This appeal, which has several unique considerations, concerns the sentences imposed for two counts of the historical offence of seduction. 2 The offence, which was repealed in 1988, is set out in s. 151 of the applicable Criminal Code , R.S.C. 1970, c. C-34 (the 1975 Code ): Every male person who, being eighteen years of age or more, seduces a female person of previously chaste character who is sixteen years or more but less than eighteen years of age is guilty of an indictable offence and is liable to imprisonment for two years. 3

Section 141 of the 1975 Code sets out a one year limitation period: No proceedings for an offence under

section 151 ... shall be commenced more than one year after the time when the offence is alleged to have been committed. 4 In 2011, the accused pled guilty to the two counts of seduction. The victims are two sisters (S.B and K.B.) who lived next door to the accused in the 1970s. At that time, the accused was in his mid-thirties. At the time of sentencing he was 71 years old.

5 The sentencing proceeded on the basis of an agreed statement of facts. 6 The sentencing judge (the judge) imposed the maximum sentence of two years’ imprisonment for the count pertaining to K.B. and twelve months consecutive for the count pertaining to S.B. 7 The accused argues, among other things, that the judge erred in principle by applying the current law with respect to sentencing for sexual offences and that the sentence is harsh and excessive given the nature of the offence, the passage of time, and his otherwise exemplary life. 8 The court asked counsel to address two new issues. 9 The first, raised prior to the appeal hearing, concerns the impact, if any, of the one-year limitation period. 10 The second was raised after the appeal hearing, when the decision was on reserve.

The panel requested that the hearing be reconvened to address the appropriateness of the accused’s guilty plea to the offence of seduction concerning S.B., given that the relevant agreed facts did not involve sexual intercourse. The Agreed Statement of Facts 11 The following is the agreed statement of facts presented at the sentencing: On May 19, 1972, David Fones (32 years of age) moved to … the City of Winnipeg with his family. This residence was immediately next door to that of the two complainants, [K.B. and S.B.] who were 12 and 14 respectively at that time. Shortly after moving in, Mr.

Fones came to be known as a friendly kind of “swinger” as described by [K.B. and S.B.’s] mother and it was noticed that he had several younger girls attending his residence and hanging out on a regular basis. All were under 18 years of age. On several occasions while residing [in Winnipeg] and while [S.B.] was 16 or 17 years of age, Mr. Fones engaged in several incidents of a sexual nature with [S.B.]. These incidents occurred during her teenage years. The girls attended the residence many times as their parents were very strict and Fones allowed them to listen to music, watch tv and assisted with her homework.

They also babysat his children on multiple occasions. He essentially became their confident [ sic ], supporting [S.B.] after she had suffered a sexual assault at the hands of an employee at the local 7-11 and taking [K.B.] to the doctor when she began suffering from severe vaginal bleeding. Sex was a taboo subject in their home and Fones educated [K.B.] on certain sexual issues although they never discussed what was actually going on. Not long after Fones moved … he began to approach [S.B.], undo her pants and attempt to perform oral sex on her.

He would also fondle and kiss her neck and breasts. [S.B.] advised that she was too embarrassed to say anything and that she was very immature at the time. These incidents occurred 3 – 4 times while she was under 18 years of age. Both sisters mentioned that their parents were not very supportive or involved and they were drawn in by the attention Mr. Fones’ paid them. Mr. Fones’ sexual involvement with [K.B.] was far more involved and occurred over a much lengthier period of time. Again [K.B.] babysat the Fones children and was assisted by Fones in doing her homework.

She describes multiple events over the course of the relevant time in question when she was between 16 and 17 years of age in which Mr. Fones would take her into his lab, fondle her breasts and vagina (underneath her clothing). He would then perform oral sex and ultimately penetrate her vagina, having sexual intercourse until he ejaculated. [K.B.] advised that she attempted to push him away but he indicated to her that it wasn’t fair and he just wanted to feel her more.

She described these events as occurring on virtually a weekly basis on his couch, in various beds in the house and ultimately at his residence in the Courts of St. James where he moved after separating from his wife. [K.B.] described the process as having been “groomed”. Fones expressed to both [K.B.] and several of her friends that he loved her like one of his own children and that she was very special. She indicates that she never felt special until he came into her life. Friends described him as “treating her like a princess” and he had a special nickname for her, “Bubbles”.

When she ultimately attempted to remove herself from Fones’ life he became jealous, following her and he was not happy when she attempted to become involved with boys her own age. Fones told at least one of [K.B.’s] friends that he was in love with [K.B.] and that he recognized they were the wrong ages. This is consistent with [K.B.’s] indication that Fones asked her not to tell anyone about their “relationship” because he could get in trouble. He also bought her gifts including an engraved watch, expressing his love.

The incidents finally ended when [K.B.’s] mother threatened to shoot Fones if he went near her daughter again. Shortly thereafter he left the Province. Both woman [ sic ] have suffered long-standing emotional damage as a result of these incidents and have sought out various forms of counselling over the years. Victim Impact Statements will be provided to both.

Background 12 S.B. and K.B. made disclosure to the authorities in 1997. 13 The accused was arrested in April 2006 and charged with ten counts pertaining to his conduct between 1971 and 1977: two counts of gross indecency, two counts of indecent assault, two counts of sexual intercourse with a female person who was not his wife and without her consent, two counts of sexual intercourse with a female person not his wife and who is 14 years of age or more and is under the age of 16 years, one count of sexual intercourse with a female person not his wife and under the age of 14 years and one count of utter threat to kill. 14 S.B and K.B testified at the preliminary inquiry and the accused was committed to stand trial on all counts. 15 The accused pled guilty to three counts at the commencement of his trial and the sentencing was adjourned.

Subsequently, issues arose with respect to his guilty pleas. 16 After a case management conference in chambers with the judge, the sentencing hearing proceeded on June 30, 2011. At the hearing, the Crown read into the record the agreed statement of facts. With the consent of the Crown, the judge permitted the accused to withdraw his guilty pleas and plead not guilty to the ten counts in the indictment, but guilty to the two counts of seduction, which the Crown accepted under s. 606(4) of the Criminal Code , R.S.C. 1985, c.

C-46 (the Code ) (see para. 30 below). 17 In addition to five letters of reference, the accused filed a psychological report from Dr. Kent Somers, who concluded that the accused was low risk to re-offend and that: Mr. Fones presents as being genuinely distressed by the allegations made of him, but he ready acknowledges and accepts responsibility and culpability for his behavior.

While he strives to understand the motivations that historically led him into engaging in sexual impropriety, including his understanding at that time in his life of the cultural milieu and mores that were in effect, he makes no effort to blame the complainants or trivialize his conduct for his own behavior. 18 S.B. and K.B. delivered victim impact statements in person. They detailed the long standing destructive effects of the accused’s conduct on them. K.B. described the need for “hours of therapy” and how she felt “owned and controlled by Mr.

Fones.” S.B. spoke of the accused acting “like a father” to her and “grooming” her with compliments. Both spoke of how the accused diminished their self-worth and self-confidence, which affects them to this day. 19 The accused has no criminal record except for the offences at issue on this appeal. He worked all his adult life until health issues required him to stop. He joined the Royal Canadian Navy when he was 17, where he trained as a medical assistant.

Subsequently, he held various successful sales positions that brought him to Winnipeg and then took him to London, Ontario, Edmonton, Alberta and then to Sudbury, Ontario. He suffered his first heart attack in 1993. He currently has several medical issues, including type 2 diabetes and heart and kidney problems. At the time the appeal hearing reconvened, the accused was in the hospital and he instructed his counsel to proceed in his absence. 20 The Crown sought four years’ incarceration by way of two consecutive sentences of the maximum sentence of two years.

The accused acknowledged that a jail sentence was appropriate, but argued that it should be within the range that would permit it to be served in the community.

The Judge’s Reasons 21 The judge explained that the nature of the offence of seduction is that it is “likely to inflict severe psychological damage on another individual.” He acknowledged the long-standing impact on K.B. and S.B. and described their vulnerability to the accused’s advances and how he “groomed” them for his conduct. 22 He found that the accused was in a “qualified position of trust” to K.B. and S.B., given his close personal relationship with them, during which he counselled and helped them.

The judge described the relationships as “quasi parenting.” 23 The judge stated that he was “obliged to follow” the sentencing objective that denunciation and deterrence are to be given primary consideration when sentencing for an offence involving the abuse of persons under 18 years of age, and the sentencing principle that abuse committed in a position of trust or authority is an aggravating factor. In this regard, he referred to s. 718.01 and s. 718.2(a)(iii) of the Code . 24 The judge considered the accused’s personal circumstances, noting that the accused did not have any other criminal record.

He was of the view that specific deterrence was not an important principle, but that general deterrence remained “paramount.” He agreed with the defence position that the accused was not a risk to re-offend and acknowledged that he had “medical issues.” He referred to the passage of time since the offences were committed and the delays on the part of “the system” and the accused. He took into account that the accused had been on bail for a “long time.” Given the accused’s age, the judge did not view rehabilitation as “something that I realistically need to consider.” 25 He explained that Dr.

Somers’ report caused him “some concern” as he was of the view that the accused’s comments “minimize” and “rationalize” his conduct. H e stated that the accused had “demonstrated some remorse” by pleading guilty, but that it was not a guilty plea at “the first reasonable opportunity.” 26 The judge concluded that a conditional sentence was not appropriate. In explaining why, he referred to three cases: R.

v. W.G. (1995), (SK CA), 137 Sask.R. 71 (C.A.), R. v. J.A.G., 2008 MBCA 55, 228 Man.R. (2d) 99, and R. v.Bowman (B.L.), 2000 MBCA 94, 150 Man.R. (2d) 130. 27 He summarized his balancing of the various considerations as follows: ... [T]aking into account your age, the passage of time, the fact that you were on bail, the fact that you pled guilty, the fact that you arelow risk to re-offend, all of those things stack up in your favour and any I missed in the

summary I alluded to earlier. However, theoffences themselves are reprehensible. The impact on these victims is horrendous. You stole their innocence and that is not just a catchphrase, it truly applies in this case. 28 He found that the offence against K.B. “is significantly more serious than the other.” He declined to impose themaximum sentence with respect to both offences because they were different in gravity.

He was aware that the “maximum sentence isnot reserved for the worst crime committed in the worst circumstances.” After determining that consecutive sentences were appropriate,he referred to the principle of totality. The Limitation Issue 29 The accused “acquired a freedom from vulnerability to prosecution” (R. v. Ford (1993), (ON CA),15 O.R. (3d) 173 at 186 (C.A.)) after one year from the date of the offences pursuant to s. 141 of the 1975 Code. The panel askedcounsel to address whether this negated the jurisdiction of the court to entertain the accused’s guilty pleas.

As I will explain, I amsatisfied that is not the case. 30 Both counsel advised that the limitation period was discussed in chambers with the judge during the case managementdiscussions. Counsel advised that they, and the judge, agreed that the limitation period did not apply because it only restricted the periodduring which the Crown could commence a proceeding for the offence of seduction and the Crown did not commence proceedings forthat offence in this case.

Rather, they noted that the accused pled guilty to “any other offence arising out of the same transaction”pursuant to s. 606(4) of the Code: Notwithstanding any other provision of this Act, where an accused or defendant pleads not guilty of the offence charged but guilty of anyother offence arising out of the same transaction, whether or not it is an included offence, the court may, with the consent of theprosecutor, accept that plea of guilty and, if the plea is accepted, the court shall find the accused or defendant not guilty of the offencecharged and find him guilty of the offence in respect of which the plea of guilty was accepted and enter those findings in the record ofthe court. 31 In their subsequent written submissions on this issue, both counsel made the analogy to the situation where an accusedpleads guilty to a

summary conviction offence after the six-month limitation period. They cite cases where s. 606(4) of the Code wasapplied to accept a guilty plea for a

summary conviction offence that is beyond the six-month limitation period for proceedings to becommenced. See for example, R. v. K.D.S. (1999), (MB KB), 136 Man.R. (2d) 271 (Q.B.). 32 As well, the accused’s counsel argues that by proceeding as he did, the accused implicitly waived any rights that hemay have had arising from the limitation period. 33 R. v. Dudley, 2009 SCC 58, [2009] 3 S.C.R. 570, is instructive. It concerns s. 786(2) of the Code, a relatively newenactment which deals with the

summary conviction offence limitation: No proceedings shall be instituted more than six months after the time when the subject-matter of the proceedings arose, unless theprosecutor and the defendant so agree. 34 In Dudley, Fish J., for the majority, wrote (at paras. 33-35): Whatever the situation may have been prior to the amendment of s. 786(2) in 1997, the

summary conviction court now retainsjurisdiction – subject to the consent of the parties – when it is discovered that the proceedings before it were statute-barred when theinformation was sworn. On a purposive

interpretation of the amendment, the curative consent that is its object may be given at any timebefore verdict without requiring the parties to start the trial afresh. As I mentioned earlier, however, uncertainty and misunderstandingcan easily be avoided by inviting and recording on the record – before the defendant is asked to plead – an agreement by the parties toproceed summarily. It is true, as a matter of principle, that jurisdiction cannot be conferred by consent. But this principle is subject to statutory attenuation,and Parliament has since 1997 expressly provided in s. 786(2) that the prosecutor and the defendant, by mutual consent, can renounce the

six-month limitation period for

summary convictions. From the defendant’s point of view, this amounts to what may properly becharacterized as a waiver of the benefit of prescription. And it is not without interest that the Court, nearly a century ago, recognized in Giroux v. The King (1917), (SCC), 56S.C.R. 63, that “[c]onsent cannot confer jurisdiction but a privilege defeating jurisdiction may always be waived if the trial court hasjurisdiction over the subject matter” (p. 67).

In the context that concerns us here, the benefit of an expired limitation period may beregarded, at least since 1997, as a privilege that can be waived by the accused. [emphasis added] 35 While s. 786(2) and s. 606(4) are somewhat different, I am of the view that Fish J.’s analysis is pertinent to thequestion of jurisdiction here. If s. 786(2) can be viewed as contemplating a waiver of the benefit of prescription, I see no principledreason why s. 606(4) should be viewed differently. As stated by Pepler P.C.J. in R. v. Hunt, [1989] A.J. No. 153 (QL) (Prov.

Ct.),“s. 606(4) appears to be concerned with the disposition of charges before the court and not with the institution of proceedings” (at p. 2). 36 The limitation period would have defeated the jurisdiction of the court if the Crown had commenced proceedings forseduction against the accused. However, that is not what occurred here. Therefore, I am satisfied that the court had jurisdiction toconsider the accused’s guilty pleas. 37 This brings me to the issue concerning the accused’s guilty plea with respect to his conduct with S.B. Guilty Plea Concerning S.B. 38 As stated by Weiler J.A. in R. v.

Eizenga (M.), 2011 ONCA 113, 273 O.A.C. 98, “[a] guilty plea is an admission ofguilt to all the legal ingredients necessary to constitute the crime charged” (at para. 43). This principle is reflected in s. 606(1.1)(b)(

i) ofthe Code: A court may accept a plea of guilty only if it is satisfied that the accused . . . . . (

b) understands (

i) that the plea is an admission of the essential elements of the offence, . . . . . [emphasis added] 39 The offence of seduction under s. 151 of the 1975 Code requires that:

i) the accused is a male person of 18 years or more; ii) he seduces a female person; iii) the female person is of previously chaste character; and iv) the female person is between the ages of 16 years and 18 years less one day. 40 The essential elements with respect to gender and age are self-explanatory. However, the essential elements of“seduces” and “of previously chaste character” require some explanation as they are not defined. 41 Hamish C.

Stewart, Sexual Offences in Canadian Law, loose-leaf (Toronto: Thomson Reuters Canada Limited, 2012)at para. 2:600.30, explains that there were three offences that may be grouped together under the heading “seduction offences,” s. 151 ofthe 1975 Code, which is at issue here, and s. 152 and s. 154, which concerned, respectively, seduction by way of promise of marriage toa female person less than 21 years of age and seduction of a female passenger on board a vessel. He notes that there have been “few

reported prosecutions” for these offences. 42 Stewart explains that the offence of seduction “required more than the mere fact of sexual intercourse” (at para.2:600.30.10), noting what the Saskatchewan Court of Appeal wrote in R. v. Gasselle (1934), (SK CA), 62 C.C.C. 295(at p. 297): ….

The word “seduces” imports not only illicit connection but also the surrender by a woman of her chastity to a man as the result of hispersuasion, solicitation, promises, bribes or other means without the employment of force .... [emphasis added] 43 This, and other available jurisprudence, demonstrates that sexual intercourse is an essential element of the offence ofseduction. See R. v. Schemmer, (SK KB), [1927] 3 W.W.R. 417 (Sask. Dist. Ct.), and John Doe et al. v. Hickey et al.(1994), (NL SC), 125 Nfld. & P.E.I.R. 21 (Nfld.

S.C. (T.D.)). 44 For completeness, I will comment briefly on the essential element that the female person be “of previously chastecharacter,” even though I am satisfied that the agreed facts provide the necessary evidence in this regard. This element is emblematic ofthe historic nature of this offence, as is its meaning. Stewart explains that “‘[c]hastity’ did not mean ‘virginity’” (at para. 2:400.10.20). In R. v. Johnston, (ON CA), [1948] 3 D.L.R. 781 (Ont.

C.A.), Roach J.A. stated that “[c]haste character means thepossession of the qualities and traits of pureness or decency of thought and conduct” (at p. 790). 45 At the reconvened appeal hearing, counsel (the Crown now represented by Mr. Kotler) acknowledged that the guiltyplea with respect to S.B. could not stand.

To rectify this, the court agreed with them that the appropriate course of action was to permitthe accused to amend his notice of appeal to include an appeal to set aside the conviction, with the aim to be able to substitute aconviction for the appropriate offence. 46 Crown counsel was of the view that the appropriate offence was gross indecency (to which the accused had pled notguilty before the judge), while defence counsel was of the view that the offence of attempt seduction more accurately reflected theintentions of the Crown and the accused at the time of the guilty plea.

In support of this, the accused filed his motion to adduce freshevidence by way of an affidavit from him to confirm his intention with respect to S.B. at the material time. The Crown did not opposethe motion.

In his affidavit, the accused acknowledges the problem with his guilty plea with respect to S.B. and states that: … I am fully prepared to acknowledge that I had an intention to have sexual intercourse with [S.B.] and my acts acknowledged in theagreed facts read in and accepted on the June 30, 2011 court date, indicate the acts I engaged in went beyond mere preparation. 47 I am satisfied that the offence of attempt seduction existed at the time of the accused’s conduct with S.B.

Thelegislative history of the offence of seduction, and the wording of the Code, demonstrate this. 48 The offence of seduction can be traced back to legislation enacted in 1886. See

An Act to punish seduction, and likeoffences, and to make further provision for the Protection of Women and Girls, S.C. 1886 (49 Vict.), c. 52, in which s. 1 reads, in part: Any person who –

(1) Seduces and has illicit connection with any girl of previously chaste character, or who attempts to have illicit connection, with anygirl of previously chaste character.… 49 The first enactment of The Criminal Code, 1892, S.C. 1892 (55-56 Vict.), c. 29, addressed the offence of seduction,without reference to an attempt (see s. 181). The same legislation introduced the general attempt provision (see s. 64), the currentwording of which may be traced to s. 24(1) of the Criminal Code, S.C. 1953-54, c. 51.

Given this, and that “provisions of legislation aremeant to work together, both logically and teleologically, as parts of a functioning whole” (Ruth Sullivan, Sullivan on the Construction ofStatutes, 5th ed. (Markham: LexisNexis Canada Inc., 2008) at 325), it is evident that any reference to attempt seduction simply becameredundant when the Criminal Code was first enacted. 50 In these unusual and difficult circumstances, I am of the view that it is in the interests of justice to admit the freshevidence.

I am also of the view that the accused’s conduct with respect to S.B., as set out in the agreed statement of facts, is conduct of“persuasion, solicitation, promises, bribes or other means” (Gasselle at p. 297). This conduct, which the judge described as “grooming,”was more than “mere preparation,” as required for the offence of attempt seduction.

Given that, and the fresh evidence, I am of the viewthat the offence of attempt seduction is appropriate for this court to consider in the context of the conviction appeal. 51 I would set aside the conviction for the offence of seduction of S.B. and substitute a conviction for attempt seduction ofS.B.

The Sentence Appeal 52 When assisting the court with respect to how best to proceed, neither counsel argued that a substituted verdict ofattempt seduction would materially alter their submissions with respect to the sentence appeal. In fact, the Crown argued that the one-year sentence should not change because the conduct at issue did not change and remained conduct of “grooming.” I note that the one-year sentence would comply with the requirement that the maximum sentence for attempt seduction would be one year, being one-half ofthe maximum sentence for the offence of seduction. See s. 421(

b) of the 1975 Code. In light of this, my analysis that follows willprimarily address counsel’s original submissions. 53 The accused’s fundamental assertion is that the offence of seduction is very different from sexual offences set out in theCode and the law with respect to major sexual assaults relied upon by the Crown and the judge. He says that the judge was wrong toapply the principles articulated in W.G., J.A.G., and Bowman. He argues that these cases concern sexual assault offences that involveassaultive conduct or force, whereas the offence of seduction does not, by its definition.

He also distinguishes the facts of these casesfrom those in this case. For example, he notes that the victims in W.G. and J.A.G. were young children.

Therefore, he says that thejudge erred in principle by equating the offences as he did, by relying on these cases to disentitle him to a conditional sentence and byfinding that he was in a position of trust. 54 The accused also argues that the sentence is harsh and excessive for these reasons and because the judge failed to giveappropriate consideration to his personal circumstances and the passage of time. 55 The thrust of the Crown’s submission is that these offences occurred from a position of trust against children and thecurrent sentencing regime of the Code and related jurisprudence was correctly applied by the judge.

As well, it asserts that the judge’sapproach and analysis is in keeping with current sentencing jurisprudence that applies to historical sexual offences, albeit not the offenceof seduction. It asserts that the judge did not err in principle in focussing on general deterrence and denunciation and in finding that theaccused was in a position of trust. It says that the sentence is not harsh and excessive.

Standard of Review and Identification of Issues 56 The standard of review on a sentence appeal is well known and shows deference to the sentencing judge’s discretionprovided that the judge did not err in principle and that the sentence is not “demonstrably unfit.” See R. v. Ruizfuentes (H.S.), 2010MBCA 90 at para. 7, 258 Man.R. (2d) 220. 57 The issues in this appeal may be stated as follows: 1. Did the judge err in principle in applying current sentencing principles for sexual offences to the historical offence ofseduction? 2. Did the judge err in principle by relying on inapplicable case law? 3.

Did the judge err in finding that the accused was in a position of trust? 4. Did the judge overemphasize general deterrence and denunciation given the passage of thirty years, the accused’s age andthe life lived by the accused? 5. Is the sentence harsh and excessive in all of the circumstances (including the substituted offence of attempt seduction) andtherefore unfit? Did the judge err in principle in applying the current sentencing principles for sexual offences to the historical offence of seduction?

Did the judge err in principle in relying on inapplicable case law? 58 I do not accept the accused’s argument that the offence of seduction is fundamentally different from current sexualoffences because it does not involve “the employment of force,” as stated in Gasselle. I agree with the Crown that current sexual assaultoffences are appropriately characterized by the absence of consent of the victim, which arises, of course, in circumstances of the threat orinfliction of physical force.

However, the absence of consent also arises in other circumstances, such as where the age of the victim mustbe considered or where the offender is in a position of trust. Whatever the cause of the absence of consent, as stated by Abella J.A., asshe then was, in R. v. Stuckless (G.) (1998), (ON CA), 111 O.A.C. 357 (at para. 44): Sexual abuse is

an act of violence. When committed against children, the violence is both physical and profoundly psychological. It iscoercive and exploitative conduct … …. 59 Although, it is true that the offence of seduction involves outdated considerations that are no longer accepted in currentday society, the underlying purpose of s. 151 of the 1975 Code is still very relevant today. As Stewart states in his text, the seductionoffences were “evidently designed to protect women who were in some way vulnerable or inexperienced” (at para. 2:600.30).

Section151 specifically protected female children between the ages of 16 and 18. In effect, their vulnerability to “persuasion, solicitation,promises, bribes or other means” effectively denied any opportunity for meaningful consent to sexual intercourse. The current offence ofsexual exploitation of a young person (defined in s. 153(2) as someone between the ages of 16 and 18) calls for compellingly similarconsiderations (see s. 153(1) of the Code). In the end, it is the exploitative sexual conduct of the accused with respect to S.B. and K.B.

that must be addressed. The judge understood this. 60 The judge sentenced the accused in 2011 for offences he committed in the 1970s. Appellate jurisprudence required thathe sentence the accused in accordance with the provisions of the Criminal Code and the case law in effect at the time of the sentencingunless they were inconsistent with statutory provisions to the accused’s benefit (such as the maximum sentence of two years set out ins. 151 of the 1975 Code). See R. v. Paradis (1991), (NL CA), 92 Nfld. & P.E.I.R. 271 (Nfld. C.A.), and R. v. A.R.(1994), (MB CA), 92 Man.R. (2d) 183 (C.A.). Also see W.G., R. v.

S.M.H., 2011 ONCA 215 (QL), R. v. R.J.G., 2007BCCA 631, 250 B.C.A.C. 47, and R. v. R.D. (1996), (SK CA), 144 Sask.R. 21 (C.A.). 61 In Paradis, the Newfoundland Court of Appeal addressed the issue of whether a sentencing judge erred in law inconsidering what the sentence for a priest would have been at the time of the commission of four counts of gross indecency, rather thanat the sentencing nine years later.

O’Neill J.A., for the court, stated (at paras. 10-11): We agree with the position taken by counsel for the Crown that the Provincial Court judge erred in law in imposing a sentence whichreflected what an appropriate disposition would have been at the time the offenses were committed. .... Regard must be had to the offender, to the offence and to the interests of society, at the time of sentencing.

It is only at the time ofsentencing ... that the elements of general and individual deterrence, punishment, and rehabilitation, and the degree to which any or allshould be applied, can be considered in arriving at a fit sentence. 62 The reasons of Twaddle J.A. (for the court) in A.R. also demonstrate that historical sexual offences are sentenced on thebasis of sentencing principles applicable at the time of sentencing. A.R. concerned an offender who was convicted in 1993 of havingsexual intercourse on three occasions with his 13-year-old daughter in the early 1970s.

In his analysis, Twaddle J.A. referred tosentencing principles established after the dates of the offender’s offences. He described the offender’s offence as a “major sexualassault” (at para. 3) and relied on R. v. C.D. (1991), (MB CA), 75 Man.R. (2d) 14 (C.A.), in which the courtaddressed the “starting point approach” to sentencing propounded in R. v. Sandercock (1985), 1985 ABCA 218 , 62 A.R. 382(C.A.), for “major sexual assaults.” 63 The judge made it clear that the factual circumstances of the cases that he referred to differed from the circumstanceshere.

For example, he noted that the facts did not involve a family member who abused a young child, as was the case in J.A.G. andBowman. He relied on the cases to underscore that the principles of general deterrence and denunciation are paramount in casesinvolving sexual offences against children and that a conditional sentence is generally not appropriate in those circumstances. 64 The judge did not err in principle in applying the current sentencing principles to the historical offence of seduction, nordo I see any error in principle in how he relied on the cases that he referred to in his reasons.

Did the judge err in finding that the accused was in a position of trust? 65 The accused argues that the judge erred in finding that he was in a position of trust, saying that this was not part of theagreed facts or an element of the offence of seduction. 66 The Crown asserts that the judge was entitled to infer, as a question of fact, from the agreed facts before him that therelationships demonstrated a degree of trust. 67 Whether a person is in a position of trust or authority is a question of fact. See R. v.

Audet, (SCC),[1996] 2 S.C.R. 171, in which La Forest J., for the majority, wrote (at para. 38): It will be up to the trial judge to determine, on the basis of all the factual circumstances relevant to the characterization of the relationshipbetween a young person and an accused, whether the accused was in a position of trust or authority towards the young person or whetherthe young person was in a relationship of dependency with the accused at the time of the alleged offence. .... It would be inappropriate totry to set out an exhaustive list of the factors to be considered by the trier of fact.

The age difference between the accused and the youngperson, the evolution of their relationship, and above all the status of the accused in relation to the young person will of course berelevant in many cases. 68 The judge was obliged to consider the nature of the accused’s relationships with S.B. and K.B. They were the meansby which he committed the offences against them. He recognized their vulnerability over a prolonged period of time.

Given the agreedstatement of facts, the judge committed neither an error in principle nor in fact in finding that the accused occupied a “qualified positionof trust.” Did the judge overemphasize general deterrence and denunciation given the passage of thirty years, the accused’s age and the life livedby the accused? Is the sentence harsh and excessive in all of the circumstances and therefore unfit? 69 The accused asserts that the judge overemphasized the principles of general deterrence and denunciation given his

personal circumstances, particularly in the context of the passage of time. As a result, he says that the sentence is harsh and excessive. 70 The jurisprudence appropriately relied on by the judge directs that general deterrence and denunciation are the primaryprinciples of sentencing for sexual offences against vulnerable children, particularly by those found to be in a position of trust. 71 Once again, A.R. is instructive in the context of historical offences and aging offenders. In that case, the offender was71 years old at the time of the appeal and suffered from muscular dystrophy.

He was wheelchair-bound and required constant attention. He had no other criminal record. This court described the 30-month sentence that was under appeal for sexual intercourse with his 13-year-old daughter as “extremely lenient” in “ordinary circumstances” (at para. 2).

However, it found that extraordinary circumstancesexisted and imposed a suspended sentence with unsupervised probation for two years (the option of a conditional sentence was notavailable at that time). 72 In addressing the offender’s position that a prison term was an unfit sentence in light of the “antiquity of the offence,the age of the accused and his infirm state” (at para. 32), Twaddle J.A. wrote (at paras. 33-37): The antiquity of the offence is not usually a mitigating feature: see R. v. Spence (1993), 1992 ABCA 352 , 78 C.C.C. (3d) 451(Alta. C.A.).

Denunciation and general deterrence remain the predominant sentencing principles. As the court said in Spence (at p.455): [I]f the court were to impose a lenient sentence because of the passage of time, some members of the community might regard thesentence as judicial condonation of the conduct in question. That would tend to lessen respect for the administration of justice.

Nonetheless, where the delay in the reporting of the offence has not resulted from threats made by the offender, or from other attempts tosuppress a complaint, the offender may be entitled to a somewhat reduced sentence if he has led an exemplary life during the interveningyears and demonstrates genuine remorse. Such circumstances would obviate the need for individual deterrence and time forrehabilitation. Advanced age is usually a mitigating feature. There are two reasons for this. The older a person is the harder it is to serve a prison termand the less is that person’s life expectancy after prison.

As a general rule, however, advanced age does not entitle a person who has committed an offence of the kind we are dealing with here toa non-incarceratory sentence. The most such an offender can hope for is a reduction in the time he or she would otherwise have served:see, e.g. R. v. Dinn (1993), (NL CA), 104 Nfld. & P.E.I.R. 263; 329 A.P.R. 263 (C.A.), in which a 79-year-oldwoman was only given a two-year sentence for assaulting young children. An accused’s infirmity, always a factor to be considered, may warrant a reduction in the sentence that would otherwise have beenimposed or a different kind of sentence.

It all depends on the nature and effect of the infirmity and the nature and seriousness of thecrime. Compassion must neither be stifled nor allowed to take control. 73 Two years later, the Supreme Court of Canada wrote in R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500(at para. 74): However, in the process of determining a just and appropriate fixed-term sentence of imprisonment, the sentencing judge should bemindful of the age of the offender in applying the relevant principles of sentencing.

After a certain point, the utilitarian and normativegoals of sentencing will eventually begin to exhaust themselves once a contemplated sentence starts to surpass any reasonable estimationof the offender’s remaining natural life span.

Accordingly, in exercising his or her specialized discretion under the Code, a sentencingjudge should generally refrain from imposing a fixed-term sentence which so greatly exceeds an offender’s expected remaining life spanthat the traditional goals of sentencing, even general deterrence and denunciation, have all but depleted their functional value. …. 74 In keeping with this jurisprudence, the judge considered all of the accused’s circumstances, including his age and hishealth issues. He concluded that specific deterrence and rehabilitation were not factors that should weigh heavily in his considerations.

He balanced these considerations with the offences that the accused committed. 75 The judge rightly labelled the accused’s conduct of persuasion as “grooming.” Over a period of years the accusednurtured the victims’ vulnerability and took away their innocence. The judge understandably described the accused’s conduct as“reprehensible.”

76 This was a complex sentencing and the judge considered and balanced all the appropriate sentencing principles and factors. Were it not for new considerations that arose on appeal, I am of the view that the combined sentence of three years would have been entitled to deference, given the circumstances of the offences, their devastating impact on S.B. and K.B., and that denunciation and deterrence are the primary sentencing principles. 77 I must take into account the fact of the substituted verdict of attempt seduction and the fact of the accused’s recent ill health.

His recent hospitalization and inability to attend court amplifies the evidence of his ailing health that was before the judge. 78 Both of these considerations are relevant to whether the one-year sentence imposed for the offence of seduction of S.B. remains a fit sentence for the offence of attempt seduction. I would add that the accused’s willingness to facilitate a solution to the difficult issue concerning his guilty plea demonstrates an acknowledgment of responsibility for his offence and is another relevant consideration.

In all of the circumstances at this time, I conclude that a sentence of six months for the offence of attempt seduction of S.B. is a fit sentence. 79 As for the two-year sentence for the accused’s conduct with K.B., I am of the view that it is now unfit given the further passage of time and the accused’s ailing health. I would set aside the sentence of two years and replace it with a sentence of eighteen months. 80 While the accused’s ailing health warranted further consideration, it does not compel extraordinary consideration, as was the case in A.R.

I agree with the judge that the sentences should be served consecutively. The total two-year sentence does not offend the principle of totality. 81 I acknowledge that the accused was seeking a conditional sentence, which requires a combined sentence of less than two years. I am of the view that the judge rightly concluded that a conditional sentence was not appropriate for these offences. Conclusion 82 I would allow the conviction appeal for the offence of seduction of S.B., set aside the guilty plea and substitute it with a conviction for attempt seduction.

I would sentence the accused to six months’ incarceration for this offence. Leave having been granted, I would allow the sentence appeal for the offence of seduction of K.B., set aside the sentence of two years and substitute a sentence of eighteen months’ incarceration, to be served consecutively. J.A. I agree: J.A. I agree: J.A.