R. v. F.M. | Examples Of Favourable Verdicts

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R. v. Morris

Her Majesty the Queen, and
Filipo Morris

[2005] O.J. No. 3459

Ontario Court of Justice
W.A. Gorewich J.

January 18, 2005.
(30 paras.)
Ms. A. Zagorski for the Crown
Mr. T. Pain For the Accused

1 W.A. GOREWICH J.:— Mr. Morris entered a guilty plea to a count of sexual touching for a sexual purpose, contrary to s. 151 of the Criminal Code. On April the 13th, 2004, the Crown elected to proceed summarily in this matter. Mr. Morris is charged that on or about the 5th day of March in the year 2004, in Genoa, that he did for a sexual purpose touch with a part of his body, his tongue, the body of a person under the age of fourteen years, contrary to the Criminal Code.
2 The facts are as follows: On March 5th, 2004, the victim, then aged 2-1/2 years, was at the Morris home in the care of Mrs. Morris, who provided daycare services. The accused, aged 42, lived in the home where his mother provided the daycare services. The facts reveal that the accused person sometimes played with the children when he came home from work, and was occasionally alone downstairs with the children. On this day, there was a period where the accused and the young child were alone, at which point the offence took place. He lowered her underwear and licked her vagina. The same night, when the child’s mother was preparing her for bed, she noted dried blood on the child’s underwear. Upon making inquiries, the child related that Filipo licked her vaginal area (using age appropriate language to convey this information). The child was taken to a physician who also found bruising in this area.
3 On the facts before the court, there appears to be only one episode of such behaviour.
4 The Crown submits that a conditional sentence is not appropriate in the circumstances described and seeks a term of traditional imprisonment, i.e., to be served in a custodial setting, prison. The Crown argues that not only are these facts capable of justifying such a penalty, but further this situation can be seen as a breach of trust by association, if not a direct breach of trust.
5 Mr. Pain, on behalf of his client, urges that this is an appropriate case for a conditional sentence and asks the court to consider a conditional sentence of 6 months, although recognizing in his submissions that a term of imprisonment could be appropriate as well.
6 The defence argues that a DNA order is mandatory. Neither side has presented argument respecting a Section 161 Order. I will give counsel an opportunity to address this issue.
7 The court has had the benefit of reading and hearing read in court a joint victim impact statement from the parents of the child. I have the reviewed reports from Dr. Terry Bradshaw, Dr. Ronald Simpson, and, as well, I have reviewed a letter from Mrs. Morris, the mother of the accused, and a letter from the Centre for Addiction and Mental Health.
8 The Crown and defence have filed case materials, some of which will be reviewed in these reasons.
9 The report of Dr. Terry Bradshaw outlines how the incident occurred. Dr. Bradshaw notes that the extreme remorse Mr. Morris has shown for his action. He reports the feeling of disgust and shame Mr. Morris felt immediately after the event. He also reports a recognition of the violation of trust with respect to his parents and the parents of the young child, and indeed, the child herself. Dr. Bradshaw reports that the depression he found in Mr. Morris was linked to his remorse over what he had done. It is clear from the report that Mr. Morris has not had much experience in relationships, and has resorted to using adult pornography since his mid-twenties. He denies ever using child pornography. Dr. Bradshaw concluded that Mr. Morris does not suffer from personality or sexual deviance disorders, based on his own examination and in conjunction with the material he reviewed in Dr. Simpson’s report. Mr. Morris does not use drugs or alcohol. Dr. Bradshaw notes he does enjoy a good emotional and supportive relationship with his family. The report indicates a desire by Mr. Morris to introduce change in his life. He is gainfully employed, and wishes to continue with his counselling. It is interesting to note, and a credit to Mr. Morris, that he has been co-operative in his counselling sessions and has attended voluntarily for 14 counselling hours over a period of 8 months.
10 Dr. Ronald Simpson, Ph.D., administered a number of tests to Mr. Morris. The significant findings in the report are as follows: on mental illness and personality, he concludes that Mr. Morris tends to be dependant and histrionic, but not to clinically significant levels. He presents with a normal personality profile. There is no indication of a personality disorder. Regarding sexual history and preference, a significant number of tests were conducted on Mr. Morris. He underwent phallometric testing, the results showing an index to arousal to adults versus children to be within normal limits. The same results were obtained on the rape index. It is of some note that Mr. Morris’s sexual contacts as an adult are non-existent. I extract from this report Mr. Morris is in some respects of his development socially backward. He does not present a violent or criminal history. The report indicates he has not experienced symptoms of alcoholism or drug abuse, nor did they play any role at all in the incident. Tests indicate that he does suffer from impairment of executive neurocognitive functioning, and Dr. Simpson suggests further tests should be done. Other than that, he scored within the normal range on the neuropsychological tests. He enjoys good health and at the time of the testing, did not show any difficulty or history of neurological or endocrine disorders. The Violence Risk Appraisal Guide indicates he is a low risk for future aggression. The SORAG indicates also that he is a low risk for committing future sexual offences. Dr. Simpson concludes his report by indicating that Mr. Morris presents a pro-social, non-criminal, non-violent history. There are no addictions. He recommends relapse prevention therapy for sexual offenders. He finds no indication of a sexual disorder or history of inappropriate sexual behaviour, this finding supported by the results of the phallometric testing. He finds that the sexual offence before the court is out of character for Mr. Morris, but the impairment of executive functioning may be associated with impaired judgment and out of character behaviour. Dr. Simpson recommends further investigation in the form of a full neurocognitive examination with brain scan and endocrine testing. Treatment is recommended to address the difficulties in interpersonal relationships and his aberrant sexual behaviour which leads to this charge. Actuarial measures indicate that Mr. Morris is a low risk for either violent or sexual offence. Therapy should help to reduce that risk further.
11 The letter from Mr. Morris’s mother is extremely touching and sad. It reflects what Mr. Pain stated in submissions with respect to all the victims left in the wake of Mr. Morris’s action. The letter is most supportive, although Mrs. Morris expresses shock at her son’s actions. She describes in her letter how this event has impacted on their family, and that of the young child. She is profuse in her apologies for the actions of her son. She points out that he is a good, kind, and caring human being who never caused his parents any problem. The letter is a positive commentary on Mr. Morris, but reflective of the pain he has inflicted on many people as a result of his actions.
12 I have reviewed the joint Victim Impact Statement of the Canes. Mrs. Cane. read the statement in court, with her husband at her side. These are young parents who have done everything humanly possible to guarantee the safety and security of their only child. It is moving and compelling and underscores the damage done to the Canes in terms of the guilt and self-doubt they inflict on themselves concerning decisions they made respecting their daughter, and the uncertainty as to what impact this could have on an innocent little girl as she grows and matures. This event has truly rocked a young family’s stability. Mrs. Cane expresses the pain of a mother. She speaks of now being overprotective. She expresses the fear, horror, helplessness and anger she and her husband feel, and hopes no parent should ever have to experience such feelings.
13 Mr. Morris made an eloquent statement in court, apologizing, and begging forgiveness, in speaking both to his own family, the Canes, and their young child. It is clear he understands the impact of his actions on so many people, and indeed on himself. He makes special reference to how he has let his mother down and betrayed her trust. He comments on what he is doing to address the cause of his behaviour that brought him to court. He vows never to be before the courts again, expressing the intention to lead a productive, law-abiding life.
14 Mr. Morris is 43 years of age, has a university degree, and has been employed as a factory worker for sixteen years. He is single and lives with his parents. He does not have a criminal record. His actions are shocking to his family members and have been described as out of character. He presented himself to the police and provided almost immediately a full inculpatory video taped statement.
15 Section 718 of the Criminal Code reads as follows:
“… The fundamental purpose of sentencing is to contribute along with crime prevention initiatives to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: to denounce unlawful conduct; to deter the offender and other persons from committing offences; to separate offenders from society where necessary; to assist in rehabilitating offenders; to provide reparations for harm done to victims or to the community; and to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community …”
Section 718.1 reads:
“… A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender …”
Section 718.2, in part, reads:
“… A court that imposes a sentence shall take into consideration the following principles: a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or to the offender …”
Breach of trust is one of the items enumerated under aggravating factors.
I lastly refer to section 742.1:
“… Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment and the court imposes a sentence of imprisonment of less than two years and is satisfied that serving the sentence in the community would not endanger the safety of the community, and would be consistent with the fundamental purpose and principles of sentencing set out in s. 718 and 718.2 [which I have just read], the court may, for the purposes of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s complying with conditions of a conditional sentence order made under s. 742.3 …”
16 In determining what is a fit and proper sentence, the objectives of ss. 718, 718.1 and 718.2 must be interwoven into such disposition. In assessing whether a person is a candidate for a conditional sentence, the court must satisfy itself that there is no mandatory minimum sentence of imprisonment for this offence, and the range of sentence to be imposed will be one of less than 2 years. In this case, there is no mandatory minimum, and the sentence that will be imposed will be one of less than 2 years. I have considered the risk factors as set out in R. v. Maheu, 116 C.C.C. (3d) 361, at page 374, the risk factors are listed as follows: the nature of the offence, the relevant circumstances of the offence which can put in issue prior and subsequent incidents; the degree of participation by the accused; the relationship between the accused and the victim; the profile of the accused; his or her conduct following the commission of the offence; the danger which the interim release of the accused represents for the community. Each of these factors has been considered in assessing the risk factors as they relate to Mr. Morris. I am satisfied in assessing particularly the risk factor of community safety, based on the material filed herein, and the submissions I have heard that Mr. Morris would not endanger the safety of the community if he served his sentence in the community, notably that part of the community affected by this matter. These criterion having been satisfied only establish that Mr. Morris is a candidate for conditional sentence, even taking into account the nature of the offence.
17 The aggravating factors herein are as follows: While not in a traditional position of trust, the victim herein was a child of very tender years, giving rise to what I consider a gross exploitation of this victim; the potential impact of such a crime on the victim; the intrusive nature of this offence. The crime was committed in the home of the parents of the accused, a daycare centre; there is a vast difference in the ages of the accused and the victim. While not an act of violence as traditionally contemplated in these courts, such an act against a child, in my view, is an act of violence and thus falls within the aggravating factor category.
18 The mitigating factors are: The plea of guilty; compliance with the terms of release; the treatment program undertaken by Mr. Morris prior to any court order; no criminal record; his employment; the letter from his mother filed in his support; and his absolute co-operation with the police. Regarding the guilty plea, I do accept Mr. Pain’s submission that the defence could have litigated several issues in this matter. The issue of eliciting evidence from a 2 1/2-year-old for the techniques used to bring such evidence before the court could be difficult and often not result in a positive result for the prosecution. I accept Mr. Pain’s submission that there are issues regarding the voluntariness of Mr. Morris’s statement to the police and there may well have been issues regarding the Charter in relation to the giving of the statement to the police. The defence has chosen to waive such techniques available to it in order to pursue the guilty plea, and I find that a mitigating factor.
19 I have considered the sanctions available to this court, other than traditional sentences of incarceration. Lamer, C.J.C., at page 32 of R. v. Proulx, cited [2000] 1 S.C.R. 61, 30 C.R. (5th) 1, S 2000 series notes:
“… The gravity of an offence is clearly relevant to whether a conditional sentence is appropriate in these circumstances …”
20 A brief overview of the jurisprudence indicates the higher courts in this province and elsewhere has, in certain circumstances, supported the imposition of conditional sentences in these types of cases. It is to be noted such disposition is rare, a view judicially expressed in R. v. S.W. [1998] O.J. No. 2867, paragraph 8. It is important to canvass the rulings in the various judgments in these matters in order to gain some perspective of judicial opinion in these matters.
21 The Supreme Court of Canada, in R. v. L.F.W., [2000] 1 S.C.R. 132, L’Heureux-Dubé J., at page 31, comments:
“… Recognizing that there is no presumption in favour of incarceration for certain types of offences, I adopt the following comments of Cameron, J., at page 148: ‘I do start from the premise that sexual assault of a child is a crime that is abhorrent to Canadian society and society’s condemnation of those who commit such offences must be communicated in the clearest of terms. As to moral blameworthiness, the use of a vulnerable child for the sexual gratification of an adult cannot be viewed as anything but a crime of demonstrating the worst of intentions’ …”
22 Notwithstanding the stern pronouncements of the Court of Appeal, such as expressed in R. v. G.L., [2003] O.J. No. 1719, at para. 7, where it states:
“… This court has repeatedly stressed both the serious nature of sexual abuse against children and the importance of sentencing sexual offenders with the principles of denunciation and deterrence in mind …”
The conclusions of Drs. Bradshaw and Simpson must be considered. Dr. Bradshaw at page 4 and 5 of his report, states:
“… It is my professional opinion that Mr. Morris is unlikely to re-offend.”
He lists the 4 reasons for arriving at this conclusion. Dr. Simpson, at page 6 of his report, notes as follows:
“… Actuarial measures indicate that Mr. Morris is a low risk for either violent or sexual offence. Continued treatment and stabilizing of his emotional condition should reduce that risk even further …”
This court is satisfied that, as well, based on his lack of a prior record, and his own efforts at rehabilitation, i.e., his counselling, that to impose a conditional sentence would be sufficient to specifically deter the defendant. Reflecting then on the other objectives of s. 718 C.C., the question then becomes whether the imposition of a conditional sentence can achieve those objectives.
23 In answering that question, the comments of Moldaver J.A. in R. v. Bedard (2001), 158 C.C.C. (3d) 216, Ontario Court of Appeal, reflects the concern of the courts in these cases generally with an object of addressing specific and general deterrence and denunciation. He notes:
“… In my view, criminal conduct of this nature calls for severe punishment. Normally it would attract a penitentiary term …”
I contract those comments with the opinion of Lamer, C.J.C., in Proulx, where at paragraph 127, he states:
“… A conditional sentence can provide significant denunciation and deterrence. As a general matter, the more serious the offence, the longer and more onerous the conditional sentence should be. There may be some circumstances, however, where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct or to deter similar conduct in the future …”
Lamer C.J.C. continues,
“… Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence may be more appropriate than incarceration …”
He notes, as well, that,
“… A conditional sentence may be imposed even where there are aggravating circumstances …”
24 I have reviewed with great care in these reasons my reasons in imposing a 6-month custodial sentence in R. v. McCurly on similar facts. There are some very obvious distinguishing features. In McCurly, there was a classic breach of trust, there was no reliable medical evidence that addressed the risk factors, or attempted to define the underlying reasons, if any, for the behaviour. The court in McCurly was not satisfied in terms of community safety. There were also two victims in that case, and certainly more than one inappropriate sexual act. In McCurly, I referred to the decision of R. v. Ernst, rendered on April 23rd, 1998, in arriving at the sentence I did in McCurly. In Ernst, there was vaginal licking of a 4-year-old, as well as digital penetration on two occasions. There was evidence in that case that the accused had the young child touch his genitals. Vaillancourt, J. in sentencing Ernst to 6 months noted that his prospects for rehabilitation were favourable, as they are in the case at bar. There are distinguishing features between Ernst and the matter before me, primarily in the number of events. In this case, there’s only one event. The cases presented by the Crown in this matter for the most part deal with breaches of trust. I note in Towbridge, R. v. Towbridge, at Tab 8 of the Crown’s material, that that case was considered by the Court of Appeal approximately five years before the coming into effect of the conditional sentence regime, that case being decided by the Court of Appeal in 1991.
25 I have carefully considered and reviewed the applicable jurisprudence. I have also considered my own sense of what is just and proper in the circumstances within the context of the relevant case law and the material filed. I have heard the submissions of counsel. The appropriate penalty in this matter can be only one of two types of incarceration: (1), serving a period of time in a closed custodial setting, prison; or, (2), a conditional sentence, which in essence amounts to incarceration to be served under a house arrest regime. While every sexual offence by an adult against a child can be considered a breach of trust of a type, strictly speaking, it is not such where there is no family relationship or guardianship or student-teacher relationship, and this is not an exhaustive list. These are most disturbing facts. I have considered the words of Lamer C.J.C., above, with respect to the facts of this case and the act perpetrated on this innocent child. Is this one of those cases where the need for denunciation and deterrence is so pressing that traditional incarceration will be the only suitable way to express society’s condemnation of the offender’s conduct to deter similar conduct in the future? The Crown has made appropriate and responsible submissions in this matter. It would be difficult to be critical of the position advanced. A traditional jail sentence would be just and proper in these circumstances. However, I am mindful of the objectives of s. 718 to 718.2 can be achieved with the imposition of a conditional sentence. Before passing sentence, I will say that the sentence which is about to be imposed is as severe as I am able to contemplate without imposing a term of custody behind bars. There are those who consider a conditional sentence in some sense more onerous than a jail term. Lamer C.J.C. states at page 39 of Proulx:
“… The stigma of a conditional sentence with house arrest should not be underestimated. Living in the community under strict conditions where fellow residents are well aware of the offender’s criminal conduct can provide ample denunciation in many cases. In certain circumstances, the shame of encountering members of the community may make it even more difficult for the offender to serve his or her sentence in the community than in prison …”
I want to make it understood here in no uncertain terms that it was open to me to impose a term of up to 6 months in traditional custody. And given the reports of the doctors and in particular with respect to the risk factors here, I have opted instead to impose a conditional sentence, and I want to express these thoughts to the parents of young S. and I want them to know that the sentence I’m imposing, notwithstanding that it is a conditional sentence, is the maximum that I am able to impose in these circumstances.
26 Stand up, sir. There will be a conditional sentence for 6 months, the maximum under this section. The terms are that you keep the peace and be of good behaviour; that you appear before this court when you are required to do so by the court; you are to report forthwith to your supervisor and thereafter as required by your supervisor in the manner directed by your supervisor; you are to remain within the Province of Ontario unless you receive written permission from your supervisor to leave the province; you are to notify your supervisor of any change of name or address and promptly notify your supervisor of any change in employment or occupation; you are to have no contact directly or indirectly with the victim or any member of her family, if known to you, nor will you attend within 100 metres of their places of residence, places of employment or institutions of education, if known to you; you will continue such program of counselling you are currently enrolled in, or take such counselling or assessment in relation to sexual offending and psychological issues relating thereto and for depression as is recommended by your supervisor; you will reside at an address approved of by your supervisor; and you will not be in possession of any non-medically prescribed narcotics. You are to remain confined at your residence at all times during this conditional sentence, with the following exceptions: for attendance at school; for purposes of legitimate employment; for medical appointments or emergencies involving you or any member of your immediate family; for religious services; for one period not to exceed three hours every week between the hours of 9:00 a.m. and 7:00 p.m. for the purpose of shopping for necessities; for any legal obligations regarding compliance with this conditional sentence order. Each of these exceptions includes permission for immediate, direct travel only to and from the applicable location. You will provide to your supervisor a proposed schedule of school or work hours, medical appointments, religious services, shopping times and any legal obligations pursuant to this order. Your supervisor will incorporate these into a written letter of permission allowing you to be out of your residence and that letter shall be carried by you on your person at all times while you are out of your residence. You may obtain as well from your supervisor written permission to be absent from your residence for any other reason deemed appropriate by your supervisor and that written permission shall be carried by you at all times while you are out of your residence.
27 Upon your completion of your conditional sentence, sir, I am placing you on probation for three years. The terms are that you keep the peace and be of good behaviour; that you appear before this court when required to do so, that you notify your probation officer of any change of name or address or any change of employment or occupation; you are to report to your probation officer today and thereafter once every 6 months; you are to reside at an address approved of by your probation officer; you are to have no contact directly or indirectly with the victim or any member of her family, if known to you, nor are you to attend within 100 metres of their places of residence, places of employment or institutions of education, if known to you; you are not to have in your possession any non-medically prescribed narcotics; you will actively participate in such rehabilitative programs for sexual offending, psychological issues relating thereto and for depression, as is recommended by your probation officer. I am ordering that you perform 100 hours of community service during the first 14 months of your probation, which will commence within 60 days of the commencement of this probation order, which would follow your conditional sentence. I am ordering, as well, sir, that you submit for DNA testing, pursuant to the provisions of the Criminal Code. I am ordering that you attend, sir, for such testing on January the 25th at 240 Hunter Avenue in the City of Genoa, between the hours of 1:00 p.m. to 5:00 p.m., and you’ll have to sign some documents in respect of that.
28 Mr. Morris, I am ordering pursuant to s. 161 of the Criminal Code that you are prohibited from attending a public park or public swimming area where persons under the age of 14 years are present or can reasonably be expected to be present, or a daycare centre, or school ground, playground or community centre. I am also prohibiting you from seeking or 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 14 years. With respect to ss. (c), there is the reference to the pornography issue, and I’m inclined to think that is it appropriate in this case to impose ss. (c), so I’m further imposing a prohibition from using a computer system within the meaning of ss. 342.1(d) for the purpose of communicating with persons under the age of 14. These prohibitions are in effect for 7 years.
29 Mr. Morris, I’m going to make the order as follows: You’ve been convicted of an offence which comes under the s. 490.011(a) of the Criminal Code, it’s a sexual offence, s. 151, and as a result of that, it’s mandatory to order you to report for registration and No. 2 District, 171 Major Mackenzie Drive in Richmond Hill. You’re to contact the York Regional Police by telephoning them at a number which is indicated to schedule an appointment to register, and the registration is on Tuesdays and Thursdays between the hours of 1:00 p.m. and 9:00 p.m., and you’re to report to this location which serves this area. You are to report within 15 days of today’s date, so I’m ordering you to report by the 31st day of January, 2005, to 171 Captain Curtis, and you’ll be told what you need to do when you make an appointment. I’m also, pursuant to the Sex Offender Information Registration Act, ordering that you must subsequently report to the registration centre which serves the area for a period of 10 years, and that’s not discretionary, so that means you have a reporting obligation which will be setup with the registry and that will encompass a 10-year period for reporting.
30 There is also one other housekeeping matter, sir, which I’m obliged to advise you of with respect to the DNA samples. I must advise, sir, that if you fail to attend at the time and place I’ve indicated, then a peace officer is authorized to detain you for the purpose of taking those samples. So, in other words, you leave yourself open to arrest and detention so that the blood sample can be taken, so that’s if you fail to attend at the time and place I’ve indicated to you.
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