) ) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 2557

CITATION : R v MGD, 2013 ONSC 2557 COURT FILE NO.: 12-11 and 10-146 DATE: 2013/05/06 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – M.G.D. Accused ) ) ) ) ) ) ) ) Daniel Brisebois, counsel for the Crown Geraldine Castle-Trudel, counsel for the Accused ) ) HEARD: April 26 th , 2013 PUBLICATION RESTRICTION NOTICE By court order made under subsection 486 of the Criminal Code , information that may identify the person described in this judgment as the accused, complainant and/or witness may not be published, broadcasted or transmitted in any manner.

This judgment complies with this restriction so that it can be published. REASONS FOR SENTENCE LEROY, J. [ 1 ] M.G.D. was convicted on charges of aggravated assault, sexual interference and three breaches of recognizance. [ 2 ] I imposed sentence on Friday, April 26, 2013 with written reasons to follow. The preferred outcome was one that allowed M.G.D.’s treatment to begin as quickly as possible and the delay in sentence involved in scheduling and preparation was not in the community’s interest. These are my reasons for sentence.

The offences [ 3 ] M.G.D.’s first attempt at independent infant care was a singular failure. He was nineteen and involved in a relationship with the infant’s mother. She returned to work after maternity leave ended on October 26, 2009 and assigned the care of her ten-month child to M.G.D. for the duration of her shift. M.G.D. was incapable of the task and shook the baby causing lifelong disabilities. [ 4 ] The release recognizance placed M.G.D. in the care of his sister and brother-in-law on June 11, 2010.

That ended on June 18, 2010 after a sexual encounter between M.G.D. and his twelve-year-old niece on June 18, 2010 when everyone in the household was asleep.

[5] M.G.D. plead guilty and was convicted of aggravated assault, sexual interference and three breaches of recognizance beforeme on April 30, 2012. The offender [6] M.G.D. is twenty-three. He comes from a large family from whom he is estranged. No one visited M.G.D. over the lasttwenty-four months. He does not have a relationship with his biological father, who abandoned the family when M.G.D. was threemonths. His relationship with the step-father was strained. He did not do well in elementary school and may have been diagnosed withADHD.

He did not complete grade nine following a suspension for a school-yard fight. M.G.D. performed farm labour for ten yearsending when he was seventeen. Otherwise he has not held employment. [7] M.G.D. accumulated a period of twenty-four months in pre-sentence detention. In that time a detailed sexual behavioursassessment was completed. Dr. Bradford concluded that M.G.D.’s psychiatric difficulties are treatable. He recommended treatment forpaedophilia to reduce prospects for recidivism.

He confirmed adult ADHD and with the history of conduct disorder concludesimpulsivity difficulties consistent with the events of the aggravated assault on the baby. Dr. Bradford recommended the St. LawrenceValley Correctional and Treatment Centre and their programs as appropriate to M.G.D.’s needs at this time. Victim Impact [8] The baby’s life changed immutably after the assault. He has many of the consequences of a severe closed head injury buthas done well in all the circumstances. He has permanent cognitive and physiological deficits.

He requires an individual education planin the school system and an educational assistant is assigned to him on a one-to-one basis. Surgical intervention saved his life and moreis anticipated. [9] It is expected that the family would be distracted by these events and they are. Although these assaults are statisticallyrecognized, individually they are inconceivable. There is no salve that removes the pain. The baby is fortunate that he has the love andcommitment they give.

Nothing less than a communal effort will suffice. [10] M.G.D.’s niece and sister did not submit victim impact positions notwithstanding the offer to do so. Positions of counsel [11] The parties advanced a joint position. Both agree that the global range of sentence for the aggravated assault is forty-fourmonths. Crown agrees to credit for time served of twenty-four months leaving time to serve of twenty months.

Defence submits that asremand time does not accrue parole credit imprisonment should be reduced to eighteen months. [12] They were in agreement that the conviction for sexual exploitation should be imprisonment for twelve months to be servedconcurrently and this complies with the totality principle. [13] They agreed to a

section 109 weapons prohibition 10 years, DNA testing - primary and SOIRA – 20 years and

section 161prohibition – 20 years. [14] They were in agreement with the maximum three year probation order following release to include the standard statutoryrequirements, the requirement for no contact with the baby’s family or for contact with persons under the age of sixteen years, includingcomputer prohibition except as approved by subsequent Superior court order, that he follow rehabilitation recommendations, takeprescribed medications, that he sign releases as required by the probation officer and that he refrain from imposing corporal discipline onany children under the age of eighteen years. [15] They agreed that an immediate referral to the St.

Lawrence Valley Correctional and Treatment Centre is apposite and that acopy of Dr. Bradford’s report dated November 30, 2012 should be attached to the warrant. [16] They agree to a free-standing restitution order in the amount of $1,200.00 payable to J.M. to reimburse her for travel andaccommodation expenses incurred in the course of the baby’s medical treatment. Principles and Purposes of Sentencing [17] The objectives of sentencing from

Section 718 of the Criminal Code are, among others, to denounce unlawful conduct, todeter the offender and other persons from committing offences, to assist in rehabilitating offenders and to promote a sense ofresponsibility in offenders, and acknowledge the harm done to victims and to the community. [18] The obligation to balance the competing interests in play in every different situation is manifested in sections 718.1 and718.2.

Section 718.1 states that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of theoffender.

Chief Justice Lamer referred to this principle in M. (C.A.), (SCC), [1996] 1 SCR 500 at pp. 557-58, in theseterms: “Retribution in a criminal context, [as contrasted with vengeance] represents an objective, reasoned and measured determination of anappropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of theoffender, the consequential harm caused by the offender, and the normative character of the offender's conduct.

Furthermore, unlikevengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, andnothing more.” Conclusion [19] Mr. Brisebois put it well. The criminal justice system cannot undo that which is done. Sentence cannot repair loss.

[ 20 ] I agree with counsel’s submission to the point that a fit and proper sentence for M.G.D.’s aggravated assault includes forty- four months imprisonment. While some may argue that forty-four months is not enough and that the baby’s sentence is for life, the fact is that M.G.D. was a very poor choice as caregiver. He is and was afflicted with organic, undiagnosed and untreated psychiatric difficulties that moderate his moral culpability. He did not have impulse control. [ 21 ] Aggravated assault is a very serious offence.

Denunciation is a requirement of sentencing when breach of care-giving trust is underscored and the victim is an infant and is implicit in a sentence of forty-four months. Deterrence [ 22 ] I would like to invest in Mr. Brisebois’ submission to the point that this will deter generally and individually, but cannot. I think what will deter M.G.D. will be the combination of the effects of imprisonment, an appropriate medication regimen, effective counseling and hopefully increasing maturity with passing time. In terms of general deterrence, this is an impulse crime completed in the heat of the moment.

The person who could walk away to regain composure does not commit this crime. Responsibility and rehabilitation [ 23 ] The period of incarceration imposes appropriate responsibility. The referral to the treatment center and three years of probation hopefully achieves rehabilitation so that M.G.D. re-enters society as a pro-social contributing member. [ 24 ] I agree that the totality consideration requires that the twelve months assigned to the sexual exploitation conviction be served concurrently. Eighteen months versus twenty months [ 25 ] I appreciate the merit of the submission made by Ms. Castle-Trudel.

It may be that the argument might have more traction in another circumstance. In this case, the time was not wasted and it may be and I hope that as the result of the assessment and recommendations M.G.D. is able to come back much improved. Although he will never be free of the weight of the injury caused he will appreciate that he has served his time for the wrong done and done penance for the offences.

Order Final Decision [ 26 ] Fit sentence – Aggravated assault – imprisonment 44 months; Sexual exploitation – imprisonment 12 months concurrent; Breaches – one month concurrent. [ 27 ] Remand time: 24 months [ 28 ] Reduce sentence: 24 months [ 29 ] Sentence imposed: Aggravated assault: 20 months imprisonment; Sexual exploitation – 12 months imprisonment to be served concurrently; Breaches – 1 month to be served concurrently. I recommend referral the St Lawrence Correctional and Treatment Centre, Brockville and asked Dr. Bradford’s assessment report be attached to the warrant.

Ancillary Orders: [ 30 ] s. 109 - This Court orders, pursuant to section 109(2) of the Criminal Code , that M.G.D. is prohibited from: (

a) possessing any firearm (other than a prohibited firearm or restricted firearm) and any cross-bow, restricted weapon, ammunition and explosive substance for a period beginning on the day this order is made and ending 10 years after release from imprisonment. [ 31 ] SOIRA – M.G.D. must report to the registration centre referred to in

section 7.1 of the Sex Offender Information Registration Act that serves the area in which his main residence is located whenever required under

section 4.1 or 4.3 of the Sex Offender Information Registration Act, for a period of 20 years after this order is made. [ 32 ] s. 161 – M.G.D. is prohibited from: (

a) attending a public park or public swimming area where persons under the age of sixteen years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre; or (

b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of sixteen years; or (

c) having any contact – including communicating by any means – with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate; or (

d) using the internet or other digital network, unless the offender does so in accordance with conditions set by the court, for a period of 20 years, plus any period of imprisonment, commencing on today’s date, April 26 th , 2013. [ 33 ] Restitution: This Court under

section 738/739 of the Criminal Code orders that M.G.D. pay the total sum of $1,200.00 to J.M. by way of restitution for damage to, loss of or destruction of property ss. 738(1)(a).

[ 34 ] DNA: M.G.D. shall provide required bodily substances for forensic DNA analysis. [34] Probation : M.G.D. shall, for the period of 3 years from the date of expiration of his sentence of imprisonment comply with the following conditions, namely: (

i) keep the peace and be of good behaviour; (ii) appear before the court when required to do so; (iii) notify the court or the probation officer in advance of any change of name or address; (iv) promptly notify the court or the probation officer of any change of employment or occupation; (

v) report at 331 Pitt Street, Cornwall, Ontario (within 2 working days) of your release in person, to a probation officer as directed and, thereafter, be under the supervision of a probation officer or a person authorized by the probation officer to assist in the supervision of the offender, and report at such times and places as that person may require or as follows: and then as required; (vi) abstain from the purchase/possession/consumption of alcohol or other intoxicating substances; (vii) abstain from the purchase/possession/consumption of drugs except in accordance with a medical prescription; (viii) not to associate, contact or hold any communication directly or indirectly with H.M., M.M., N.B., V.B. and their immediate family; Contact with M.M. or caregiver of C.M. or C.M. as approved of by subsequent Superior Court Order; (ix) not to be within 100 metres of their place of residence, employment, education or any place they may be present; (

x) not to engage in any activity with persons under the age of 16 years including using computer system unless approved by a Superior Court Judge; (xii) follow such rehabilitative counselling/treatment as may be recommended by your probation officer and/or your medical practitioners, including counselling for anger management and sexual deviancy; (xiii) take all medication as prescribed; (xiv) sign all necessary releases to allow your probation officer to monitor compliances with your conditions; (xv) not impose any corporal discipline on any children under the age of 18 years.

Justice Rick Leroy Released: May 6 th , 2013 CITATION : R v MGD, 2013 ONSC 2557 COURT FILE NO.: 12-11and 10-146 DATE: 2013/05/06

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – M.G.D. PUBLICATION RESTRICTION notice By court order made under subsection 486 of the Criminal Code , information that may identify the person described in this judgment as the accused, complainant and/or witness may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published. REASONS FOR JUDGMENT Justice Rick Leroy Released: May 6 th , 2013