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Abstract: Transcript of the Reasons for Sentence
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R. v. S.J.(M.), 2015 NWTSC 43 S-1-CR-2014-000079 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - v - M.S.J. __________________________________________________________ Transcript of the Reasons for Sentence delivered by The Honourable Justice K. Shaner, sitting in Hay River, in the Northwest Territories, on the 13th day of August, 2015. __________________________________________________________ APPEARANCES: Ms. K. Lakusta: Counsel for the Crown Mr. P. Harte: Counsel for the Accused (Charge under s. 271 of the Criminal Code of Canada) No information shall be published in any document or broadcast or transmitted in any way which could identify the victim or a witness in these proceedings pursuant to s. 486.4 of the Criminal Code THIS TRANSCRIPT HAS BEEN ALTERED TO PROTECT THE IDENTITY OF THE VICTIM PURSUANT TO THE DIRECTION OF THE PRESIDING JUDGE Official Court Reporters 1 THE COURT: It is my job today to impose a 2 sentence on M.S.J., who was found guilty of 3 sexual assault and also found guilty on two 4 counts of sexual interference by a jury on June 5 11th, 2015. A conviction for sexual assault was 6 entered and the other two counts were stayed. 7 Before describing the circumstances of the 8 offence, there are two issues that I will 9 address. First is with respect to the Victim 10 Impact Statement submitted by D.C., the mother of 11 the victim and, from what I understand, now 12 M.S.J.'s former spouse. The second issue is with 13 respect to the legal parameters surrounding my 14 interpretation of the jury's finding of fact. 15 With respect to the Victim Impact Statement, 16 the Crown and defence both pointed out that there 17 are certain statements contained in it which go 18 beyond what should be contained in a Victim 19 Impact Statement, and these include D.C.'s 20 speculation that her younger daughter may have 21 been sexually assaulted by M.S.J. and whether 22 this, in turn, may have caused her to question 23 her own sexuality and her gender identity. As 24 well, D.C. questions whether her marriage was a 25 ruse to gain access to a victim. 26 I fully agree with both counsel that these 27 statements cannot be considered in sentencing. Official Court Reporters 1 1 They go beyond describing the impact of the crime 2 on the victim and her family and extend into the 3 realm of speculation about whether there was 4 another victim. 5 The Victim Impact Statement is written using 6 very descriptive language. It describes feelings 7 of self-doubt, hurt, loss of self-confidence and 8 other things. It also describes what the 9 victim's mother observed in her daughter both 10 during and following the period over which the 11 actions comprising the sexual assault took place. 12 Those things are properly part of the Victim 13 Impact Statement and they will be considered in 14 addition to the other factors that are relevant 15 to sentencing. 16 I turn next to the interpretation of the 17 facts. 18 Defence counsel suggested that as the 19 sentencing judge, I cannot assume that the jury 20 accepted all of what the victim said in her 21 testimony and that I can only rely upon those 22 things which I find beyond a reasonable doubt 23 support the verdict. He stated that the victim's 24 evidence was equivocal and, accordingly, that 25 there could have been a single event upon which 26 the jury relied to reach its verdicts. He 27 suggested much of the victim's evidence was not Official Court Reporters 2 1 clear, pointing to certain inconsistencies 2 between her statement to the police, which 3 ultimately became her evidence in chief pursuant 4 to Section 713.1 of the Criminal Code, and what 5 she said on cross-examination. For example, in 6 her statement to the police, she said her father 7 kissed her stomach, and during the trial, she 8 said he kissed her abdomen and her thighs. 9 Defence counsel suggests this is inconsistent. 10 He also pointed out that the victim's evidence 11 that M.S.J. kicked her brother with a steel-toed 12 boot was contradicted by her brother when he gave 13 his evidence. He said the victim was hazy in her 14 recollection of when the events began and when 15 they stopped on their own in 2010. Moreover, he 16 says the events were not of such consequence as 17 to stop the victim from going to visit him in his 18 suite after he moved from the family home. 19 Defence counsel says this is because it goes to 20 the overall seriousness of the offence and, 21 consequently, it would have an impact on the 22 length of sentence ultimately imposed. 23 The issue of the sentencing judge's 24 interpretation of the jury's factual findings was 25 considered in the Supreme Court of Canada in R. 26 v. Ferguson, 2008 SCC 6 (CanLII), [2008] 1 SCR 27 96. In the Ferguson case, at paragraphs 17 and Official Court Reporters 3 1 18, the Court stated the law as follows: 2 Two principles govern the sentencing judge in this 3 endeavour. First, the sentencing judge "is bound by the express and 4 implied factual implications of the jury's verdict": R. v. Brown, 5 1991 CanLII 73 (SCC), [1991] 2 S.C.R. 518, p. 523. The 6 sentencing judge "shall accept as proven all facts, express or 7 implied, that are essential to the jury's verdict of guilty" 8 (Criminal Code, s. 724(2)(a)), and must not accept as fact any 9 evidence consistent only with a verdict rejected by the jury: 10 Brown; R. v. Braun (1995), 95 C.C.C. (3d) 443 (Man. C.A.). 11 Second, when the factual 12 implications of the jury's verdict are ambiguous, the sentencing 13 judge should not attempt to follow the logical process of the jury, 14 but should come to his or her own independent determination of the 15 relevant facts: Brown; R. v. Fiqia (1994), 1994 ABCA 402 16 (CanLII), 162 A.R. 117 (C.A.). In doing so, the sentencing judge 17 "may find any other relevant fact that was disclosed by evidence at 18 the trial to be proven" ... 19 With respect, I do not find that the factual 20 implications of the jury's verdict are ambiguous 21 and, accordingly, the second principle from 22 Ferguson is not, in my view, engaged. The jury 23 did not return verdicts of lesser and included 24 offences, nor did it return inconsistent 25 verdicts. As pointed out by the Crown, to return 26 guilty verdicts on all three counts, the jury had 27 to have made a finding that there was more than Official Court Reporters 4 1 one incident of touching and that these incidents 2 occurred over a period of time, some years. 3 Essentially, I think what defence is asking 4 that I do is to make a determination of 5 credibility respecting the victim and to 6 substitute my own opinion on what evidence should 7 be accepted and what should be rejected for what 8 the jury may have found. In my view, the law is 9 clear that it is not open to me to make that 10 determination. This is something which is within 11 the exclusive ambit of the jury as the finder of 12 fact. 13 So with that, I will turn now to the 14 circumstances of the offence. 15 The victim is M.S.J.'s daughter, and during 16 her testimony she described how, from the time 17 she was very young, approximately five, and until 18 she was approximately 13, her father touched her 19 in various ways and in various places on her body 20 in a sexual manner, amounting to sexual assault. 21 It was limited to touching, but it happened very 22 frequently and consistently over a long period of 23 time. There was at no point any penetration. 24 Within the family unit, M.S.J. was primarily 25 responsible for caring for the children from 26 2002. He worked from time to time, but it was 27 their mother, his wife, who was the primary Official Court Reporters 5 1 breadwinner. It was thus M.S.J.'s responsibility 2 to see to the children's needs, including if and 3 when they awoke in the night. Indeed, their 4 mother slept in the basement of the house and the 5 children and M.S.J. in the upper part so the 6 mother could sleep through the night and go to 7 work in the mornings. According to the victim, 8 the children were forbidden to go to their mother 9 and wake her in the night. 10 For a variety of reasons, the victim often 11 wound up sleeping in the same bed as her father. 12 As a younger child, she often started out nightly 13 sleeping in his bed and she would be moved later 14 in the night to her own bed. As she got older, 15 she started out sleeping in her own bed, but she 16 might have had nightmares or other disturbances 17 which drove her to seek comfort from her father. 18 It was at these times that the touching most 19 often occurred. He would given her massages on 20 her back and legs, at times rubbing the insides 21 of her thighs and buttocks. During one such 22 massage when she was younger, he touched 23 her vagina. After she started wearing a bra, 24 M.S.J. would remove it from time to time, and she 25 described at one point he touched her breast. 26 They would often cuddle in a "spoon" position 27 with a sheet or blanket separating them. The Official Court Reporters 6 1 victim could from time to time feel M.S.J.'s 2 erect penis against her. Sometimes when the 3 family watched movies together, she would sit on 4 his lap and she could feel his erect penis 5 through his clothes. She described how M.S.J. 6 bathed her, using his bare hand to wash her 7 genital area. 8 Sentencing is a very complex process which 9 requires a sentencing judge to examine the nature 10 and the circumstances of the offence and the 11 circumstances of the individual offender and to 12 impose a sentence which ultimately reflects the 13 degree of responsibility of the offender. In 14 addition, the sentencing judge must take into 15 account the principles of parity (that is, 16 similar sentences are to be imposed for similar 17 offences in similar circumstances) and the 18 principle of restraint. 19 There are certain objectives that sentencing 20 should try and achieve and, in the case of sexual 21 crimes against children, deterrence and 22 denunciation are, statutorily, the two most 23 important objectives. 24 The Crown is seeking a sentence of between 25 three and three and a half years' incarceration. 26 Defence counsel suggests that a fit and proper 27 sentence is eighteen months to two years, which Official Court Reporters 7 1 is at the lower end of the range for sexual 2 assault against a child in this jurisdiction. 3 In addition to the information that M.S.J.'s 4 counsel provided about him this morning, I have 5 read the pre-sentence report prepared by 6 Probation Services which sheds some light on 7 M.S.J.'s circumstances and who he is. 8 M.S.J. is 50 years old and he is originally 9 from Cornwall, Ontario. He has lived in 10 Hay River since 1993. He holds two baccalaureate 11 degrees, one in biological sciences and the other 12 in education. He has worked as an adult 13 educator, but he became a stay-at-home father in 14 approximately 2002 and only worked from time to 15 time after that. 16 From the pre-sentence report, it appears 17 M.S.J. had a fairly stable and caring upbringing, 18 although it is indicated that his father's 19 alcohol abuse was an issue for him. He himself 20 has no reported problems with alcohol or drugs, 21 although he does report that he has an anxiety 22 disorder with which he has been diagnosed. 23 M.S.J. has no criminal record. 24 M.S.J. spent a lot of time attending to his 25 children's needs. He took lunches to school and 26 ate with them almost every day. He got them 27 involved in various sports and made sure to get Official Court Reporters 8 1 them to practices and to meets. He coached 2 swimming. One of the witnesses, a former 3 employee at the children's school, observed him 4 frequently and found him, in her opinion, to be 5 an excellent father. 6 There are a number of highly aggravating 7 circumstances in this case. The most aggravating 8 are that M.S.J. is the victim's father and thus, 9 he is in a position of trust in relation to her. 10 The victim is a child and, in accordance with 11 that, she had certain needs and vulnerabilities. 12 And, finally, it is very aggravating that the 13 sexual activity took place over such a long 14 period of time, a period of eight to ten years. 15 The victim herself did not provide a Victim 16 Impact Statement, but that of course does not 17 mean she has not been significantly affected by 18 the events that she described. There is a 19 plethora of case law in which courts across the 20 country have recognized the profound and lasting 21 effects that sexual crimes have upon children, 22 particularly when they are perpetuated by their 23 parents. 24 Defence counsel suggested that I should take 25 into account that notwithstanding the abuse she 26 described, the victim continued to have a 27 relationship with her father once the abuse Official Court Reporters 9 1 stopped in 2010 and once he moved out of the 2 family home. Indeed, she continued to visit with 3 him and to spend nights at his new home. 4 With respect, things are just not that 5 simple. Victims of sexual assault will not react 6 in the same way or necessarily in the way that we 7 expect them to act. M.S.J. is the victim's 8 father. She was young and, indeed, she suggested 9 during her testimony that it was relatively late 10 in the game when she started to realize that what 11 was happening to her was wrong, and even then, it 12 is not outside the realm of possibility that a 13 child abused by their parent will still need 14 love, affection, and approval from that parent 15 and that they will do things to fulfill that need 16 which might appear inconsistent with the abuse 17 having been visited upon them. Families are 18 complicated, people are complicated, and we 19 cannot assume that a young victim can simply cut 20 ties with a parent. 21 It is clear from D.C.'s Victim Impact 22 Statement that what happened has had a profound 23 and serious effect on the victim and on the 24 entire family. It does not take a great leap in 25 logic to reach the conclusion that this family is 26 going to have to spend a great deal of time 27 reconciling what happened and healing. Official Court Reporters 10 1 What happened caused D.C. to doubt herself, 2 her judgment, and her professional and parental 3 abilities. She also noted a significant impact 4 on the victim. 5 There are no legally mitigating factors, 6 although I note M.S.J. has no criminal record. 7 M.S.J. has indicated that he accepts that he has 8 been found guilty and that he accepts that there 9 will be a sentence imposed. He has not accepted 10 responsibility for what happened, however, nor 11 has he expressed remorse. Like anyone who is 12 accused of a criminal offence, M.S.J. was 13 entitled to have a trial. That he did not plead 14 guilty and that he does not now accept 15 responsibility or demonstrate remorse for what 16 happened is not aggravating. However, as the 17 Crown pointed out, what it means is that there 18 are no legally mitigating factors to be 19 considered in determining what is a fit and 20 proper sentence. 21 As I noted earlier, M.S.J. was observed to 22 be a very attentive father and there is no 23 dispute that he spent a lot of time with his 24 kids. In my view, however, that does not serve 25 as a mitigating factor. Many people found guilty 26 of this kind of crime are by all appearances 27 upstanding and decent members of society. The Official Court Reporters 11 1 fact is that these things do not happen out in 2 the open; they happen in secret, behind closed 3 doors and well beyond the view of neighbours, 4 friends, colleagues, or even other family 5 members. 6 The aggravating factors, breach of trust, 7 the age of the victim, and the lengthy period 8 over which the sexual abuse was sustained make 9 this to be what I consider a serious sexual 10 assault for which penitentiary time is justified. 11 The goals and objectives of sentencing, and in 12 particular denunciation and deterrence, will be 13 achieved by nothing less. Moreover, the moral 14 blameworthiness is very, very high. 15 The Crown filed several cases for me to 16 consider in determining what is the appropriate 17 range of sentence. In R. v. Doll, 2015 NWTSC 1, 18 the offender received 18 months for sexual 19 touching of a child of a relative to whom the 20 sentencing judge found he was in a position of 21 trust. Of note, however, is that the offender in 22 that case pleaded guilty and he apologized to the 23 victim, two things which were treated as 24 mitigating and justifying a shorter sentence. 25 Further, the abuse was not sustained over a 26 period of years as it is here. 27 In R. v. Griffin, 2013 NWTSC 80, what was Official Court Reporters 12 1 involved was a sustained series of sexual 2 assaults on a child over a period of years, 3 attracting a four-year starting point. The Crown 4 sought a sentence of three and a half years' 5 incarceration. The sentencing judge imposed this 6 sentence indicating, however, that she was 7 exercising considerable restraint in doing so. 8 One of the key factors was the relatively young 9 age of the offender. 10 I do note that there are some differences 11 between the circumstances in Griffin and here in 12 terms of the severity of the assault. However, 13 the assault here is -- the actions here took 14 place over a long period of time. 15 Finally, in R. v. D.(D.), 2002 CanLII 44915 16 and 2002 CarswellOnt 881, Justice Moldaver, who 17 was then of the Ontario Court of Appeal, 18 summarized the appropriate range of sentence, and 19 I agree entirely with what he said at paragraph 20 44: 21 To summarize, I am of the view that as a general rule, when adult 22 offenders, in a position of trust, sexually abuse innocent young 23 children on a regular and persistent basis over substantial 24 periods of time, they can expect to receive mid to upper single 25 digit penitentiary terms. When the abuse involves full 26 intercourse, anal or vaginal, and it is accompanied by other acts of 27 physical violence, threats of physical violence, or other forms Official Court Reporters 13 1 of extortion, upper single digit to low double digit penitentiary 2 terms will generally be appropriate. Finally, in cases 3 where these elements are accompanied by a pattern of severe 4 psychological, emotional and physical brutalization, still 5 higher penalties will be warranted. 6 7 M.S.J., please stand. M.S.J., I sentence 8 you to a period of incarceration of three years 9 for the crime of sexual assault. You can sit 10 down. 11 The Crown has also sought a number of 12 ancillary orders. I will grant an order that 13 M.S.J. must provide a sample of his DNA, and 14 there will be a SOIRA order in effect for 20 15 years. I decline to impose a firearms 16 prohibition because, while I do not wish to 17 understate the seriousness of the offence or the 18 psychological violence that these types of 19 offences can visit on victims, there was no 20 physical violence used in this case. 21 The Crown seeks an order under Section 161 22 of the Criminal Code to prohibit M.S.J. from 23 attending certain places that children frequent 24 or seeking or obtaining employment or volunteer 25 positions which involve interaction with 26 individuals under 16. As well, the Crown seeks a 27 provision under this section which would prohibit Official Court Reporters 14 1 M.S.J. from having any contact with or 2 communicating by any means with a person under 16 3 unless it is under the supervision of a person 4 the Court considers appropriate. I am going to 5 make that order. However, I recognize that 6 M.S.J.'s personal circumstances visa-Ã -vis his 7 family and certain of his children may change 8 and, accordingly, should those circumstances 9 change, he is free to apply to vary this term 10 under Section 161(3). That order will be in 11 effect for ten years. There will also be an 12 order under Section 743.21 that M.S.J. not 13 communicate in any way with the victim while he 14 is in custody. 15 Given M.S.J.'s pecuniary circumstances and 16 the time at which the offence took place, as 17 described in the PSR, the Victim of Crime 18 surcharge will be waived. 19 Finally, Mr. Harte, do you wish to make any 20 submissions on whether I should recommend that 21 M.S.J. be permitted to serve his sentence in the 22 Northwest Territories? 23 MR. HARTE: Yes, I do, Your Honour, and I 24 would ask the Court to make that recommendation. 25 THE COURT: All right. I will ask the 26 clerk to endorse the Warrant of Committal to 27 reflect this court's recommendation that M.S.J. Official Court Reporters 15 1 be permitted to serve the sentence in the 2 Northwest Territories. 3 Finally, Mr. Harte, I just wish to confirm 4 whether M.S.J. spent any time in pre-trial 5 custody. 6 MS. LAKUSTA: Yes, he has been in custody 7 now for 48 hours as part of the recognizance. So 8 I think that would be about three days of credit. 9 THE COURT: All right. The Warrant of 10 Committal -- do you wish to make -- 11 MR. HARTE: I just -- my one concern with 12 respect to the order that the Court has made is 13 -- sorry. I don't want to interrupt. So the 14 reason I want to look at the Code is this, if 15 there is a prohibition in place pursuant to 16 Section 161, that may mean that M.S.J. can't have 17 any family visits in the event that either of his 18 children were able to make it to -- any of his 19 sons were able to make it to Yellowknife, he 20 wouldn't be permitted to see G. or Q. And the 21 other problem that might create is he wouldn't be 22 able to speak to them on the telephone. 23 THE COURT: He would not be able to do 24 either of those. That is why -- but I do not 25 have any information about what his circumstances 26 are, and I know that -- but from the submissions 27 that this is also -- the family matter is before Official Court Reporters 16 1 the Court as well. So it would be more 2 appropriate for -- the appropriateness of visits 3 to be worked out in the family proceedings and 4 then that can go before the Supreme Court under 5 161(2) or, sorry, (3); he can apply for a 6 variation. 7 MR. HARTE: I understand. I had 8 misunderstood Your Honour's comment. I thought 9 you were referring to upon release. In any 10 event, I understand. Thank you, Your Honour. 11 THE COURT: Finally -- sorry, Mr. Harte. 12 Did you have any submissions with respect to the 13 amount of credit? 14 MR. HARTE: It's three days in relation 15 to -- 16 THE COURT: Three days? All right. 17 MR. HARTE: It's not going to make much 18 difference. 19 THE COURT: All right. So the Warrant of 20 Committal should reflect that M.S.J. is given 21 three days' credit for time spent in pre-trial 22 custody. 23 ................................. 24 Certified Pursuant to Rule 723 of the Rules of Court 25 26 Jane Romanowich, CSR(A) 27 Court Reporter Official Court Reporters 17
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