R. v. Alderman, 2013 ONSC 2710

Citation: R. v. Alderman, 2013 ONSC 2710 Court File No. 819/12 SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN v. GEORGE ALDERMAN ********** R E A S O N S F O R S E N T E N C E BEFORE THE HONOURABLE JUSTICE C. CONLAN on March 25, 2013, at WALKERTON, Ontario ********** RESTRICTION ON PUBLICATION BY COURT ORDER MADE UNDER SUBSECTION 486.4(1) OF THE CRIMINAL CODE , INFORMATION THAT MAY IDENTIFY THE PERSON DESCRIBED IN THIS JUDGMENT AS THE COMPLAINANT MAY NOT BE PUBLISHED, BROADCASTED OR TRANSMITTED IN ANY MANNER. THIS JUDGMENT COMPLIES WITH THIS RESTRICTION SO THAT IT CAN BE PUBLISHED.

APPEARANCES : B. Linley Counsel for the Crown H. Thompson Counsel for George Alderman SUPERIOR COURT OF JUSTICE T A B L E O F C O N T E N T S ********** Reasons for Sentence Page 1 **********

Transcript Ordered: March 27, 2013 Transcript Completed: April 15, 2013 Ordering Party Notified: April 15, 2013 R E A S O N S F O R S E N T E N C E CONLAN, J. (Orally): These are my oral reasons for sentence in the matter of Her Majesty the Queen and George Alderman. INTRODUCTION AND A DESCRIPTION OF THE CIRCUMSTANCES OF THE OFFENCE Mr. Alderman was charged that he on or about the 20 th day of January, 2012 at the Municipality of Kincardine, did commit a sexual assault on K.C., contrary to

Section 271 of the Criminal Code . The trial of this matter took place before me, sitting without a jury in Walkerton in January 2013. In Reasons for Judgment dated January 30, 2013, I found Mr. Alderman guilty of the charge of sexual assault. A presentence report was ordered and the sentencing was ultimately adjourned to today’s date. In

summary, the circumstances of the offence were that Mr. Alderman at the Branch of the Royal Canadian Legion in Kincardine sexually assaulted Ms C by kissing her and touching and groping her breast. THE CIRCUMSTANCES OF THE OFFENDER A presentence report has been prepared in this matter. Mr. Alderman is currently 69 years old, born March 12, 1944. He has no prior criminal record. Mr. Alderman does have some health issues, including severe diabetes and a history of cancer. The presentence report indicates that Mr. Alderman was cooperative with the police upon his arrest.

The report also indicates that in the opinion of the author, while being interviewed Mr. Alderman minimized his responsibility for his actions in the commission of the offence. THE POSITIONS OF COUNSEL

On behalf of the Crown, Mr. Linley recommends the following in terms of sentence. First, a primary DNA Order. Second, a

Section 110, Criminal Code Firearms and Weapons Prohibition Order for a term of five years. Third, a Sex Offender Registry Order for a duration of 20 years. In addition, Mr. Linley suggests a significant fine and a period of probation for at least two years, largely on the terms suggested by the author of the presentence report. On behalf of Mr. Alderman, Mr. Thompson agrees that a probationary disposition is reasonable. THE MANDATORY OR UNOPPOSED MATTERS This Court orders a primary DNA sample with regard to Mr. Alderman. This Court orders that Mr. Alderman be the subject of a Firearms and Weapons Prohibition Order for a period of five years under

Section 110 of the Criminal Code of Canada . This Court orders that Mr. Alderman be the subject of a Sex Offender Registry Order pursuant to the Criminal Code of Canada for a duration of 20 years. ANALYSIS OF THE SUBSTANTIVE PORTION OF THE SENTENCE FOR MR. ALDERMAN I have taken into account the five exhibits filed on sentence. Exhibit 1 is the presentence report for Mr. Alderman that I have already alluded to. Exhibit 2 is the victim impact statement completed by Ms C. It is obvious to the Court that this offence perpetrated by Mr.

Alderman against Ms C has had a significant impact on Ms C both emotionally and financially. Exhibit 3 is documentation from the Royal Canadian Legion and complaint form. It should be noted that Mr. Alderman has already received a form of consequence as a result of this crime, in that his privileges at the Legion have been suspended. Exhibit 4 is a newspaper

article dealing largely with Mr. Alderman’s history with the Canadian Armed Forces. And Exhibit 5 are various documents, again dealing with Mr. Alderman’s history with the Canadian Forces. The two primary principles of sentencing under

Section 718 of the Criminal Code of Canada at play in this case are denunciation and general deterrence. I can indicate that but for the age of Mr. Alderman and his lack of any prior criminal record, it is very likely that I would have sentenced Mr. Alderman to a period of imprisonment. But having taken into consideration all of the circumstances of the offence and the circumstances of the offender, including his age and his lack of any prior criminal record I am satisfied that a non- custodial sentence is reasonable in this case. In addition to Mr.

Alderman’s lack of any prior criminal record it should be noted that Mr. Alderman is part of a group to whom all Canadians owe a debt of gratitude in recognition of Mr. Alderman’s history with the Canadian Armed Forces. Having said that, the behaviour exhibited by Mr. Alderman on this date, not only victimized Ms C but exemplified a complete lack of appreciation and ignorance on the part of Mr. Alderman as to what is acceptable and not acceptable. It is simply unacceptable for any person to have sexual contact with another person based on some assumption that that other person agrees with the sexual contact.

That is not the law in this country and for very good reason. Hopefully Ms C after today will continue with the productive life that she has led thus far. On the substantive part of the sentence for Mr. Alderman, the Court is imposing a period of probation for a term of 24 months. The terms of the probation order are as follows. The statutory terms apply. In addition, Mr. Alderman is to report to a probation officer within 24 hours of this time and thereafter on a

schedule as directed by the Probation Officer. Mr. Alderman is not to have any communication, directly or indirectly with K.C. Mr. Alderman is not to attend at any place known to him to be the residence, place of education or place of employment of Ms C. For a period of six months from today’s date, Mr. Alderman is prohibited from attending at any Branch of the Royal Canadian Legion. Mr. Alderman is to attend for any counseling or therapy directed by his Probation Officer and is not to discontinue any counseling or therapy without the prior permission of the Probation Officer. Mr.

Alderman is to sign any and all releases requested by the Probation Officer to confirm his attendance at and participation in the counseling and/or therapy. Mr. Alderman shall complete 50 hours of community service. The monthly rate of completion of those community service hours and the place or places at which Mr. Alderman shall perform the community service are matters in the discretion of the supervising Probation Officer, but at a minimum the 50 hours of community service shall be completed in full by Mr. Alderman within 12 months of today’s date.

I have considered the Crown’s request for a fine order and in the circumstances including Mr. Alderman’s relatively modest

income, I am declining to make any fine order. That is the sentence unless counsel are of the opinion that I have left something out. MR. LINLEY: I am just checking on the victim fine surcharge, Your Honour. The Crown would request that you consider a victim fine surcharge. THE COURT: Yes. I have heard the submissions of Mr. Thompson and I recognize that Mr. Alderman has a relatively modest income, but given the fact that this is a serious offence, sexual assault and given the fact that I am sparing Mr.

Alderman the request of the Crown for a fine, the victim fine surcharge will apply and shall be paid within 30 days of today’s date. Anything further Mr. Linley? MR. LINLEY: No, sir. THE COURT: Mr. Thompson? MR. THOMPSON: No thank you, Your Honour. THE COURT: All right. Just one moment please. May I have the endorsement? I have endorsed the indictment as follows: Mr. Alderman’s sentencing hearing was held today. The sentence is as follows: one, a Sex Offender Registry Order for a period of 20 years; two, a primary DNA sample Order; three, a

Section 110 Criminal Code of Canada Firearms and Weapons Prohibition Order for period of five years; Four, the statutory victim fine surcharge with 30 days for payment; and five, 24 months’ probation on the terms indicated. Ms C, I wish you success moving forward. And Mr. Alderman, you have led the vast majority of your life without any involvement with the criminal justice system and I have complete confidence that that will continue after today. But it will only continue that way if you come to recognize that the type of behaviour that you exhibited on the date in question is unacceptable and criminal.

So I wish you and your partner good luck moving forward. Thank you. ********** FORM 2 Certificate of Transcript Evidence Act , Subsection 5(2) I, Melissa Curtis certify that this document is a true and accurate transcription of the recording of R. v. Alderman in the Superior Court of Justice held at 207 Cayley Street, Walkerton, Ontario on March 25, 2013 taken from Recording No. 0311-207-CR1-20130325-094841-10, which has been certified in Form 1.

____________________ ________________________________ (Date) Melissa Curtis