Criminal Lawyer Toronto - sentencing of a pastor convicted of two sexual assault charges receives no jail and 3 years probation

Case Name:

R. v. [REDACTED]

Between

Her Majesty the Queen, and

[REDACTED]

[2016] O.J. No. [REDACTED]

2016 ONSC [REDACTED]

Ontario Superior Court of Justice

[REDACTED]

Heard: January 28, 2016.

Judgment: February 8, 2016.

(27 paras.)

Counsel:

[REDACTED], for the Crown.

[REDACTED], for [REDACTED].

REASONS FOR SENTENCE

1 [REDACTED]:-- This judgment considers the appropriate sentence for two sexual assaults committed by a pastor, as well as the impact of a stringent house arrest bail condition on that sentence.

Factual Background

2 [REDACTED] is a pastor. He was charged with 9 sexual offences relating to his conduct with a number of young parishioners. After a judge-alone trial, I found [REDACTED] not guilty on 7 of these counts. I found him guilty on 2 counts of sexual assault against two young adults. This young couple wanted to get married and came to [REDACTED] for spiritual guidance. Instead, they were both groped.

3 This male-female couple, both around 20 at the time, knew [REDACTED] through the church at which he preached. When the female victim became pregnant, they met with [REDACTED] on numerous occasions. He agreed to marry them. And that did occur. In the meantime, he insisted that they have a "cleansing" ceremony to rid them of their past sexual sins.

4 This "cleansing" occurred one night at [REDACTED]'s apartment, where he lived with his wife and children. [REDACTED] prayed with the couple. They knew that he would put anointing oil on parts of their body. What they did not know was that [REDACTED] would be placing anointing oil on their genitals, under their clothing. [REDACTED] briefly touched the male victim's penis and then the female victim's breasts and vagina. Neither said anything at the time. They both thanked [REDACTED] afterwards. [REDACTED] subsequently officiated at their wedding ceremony and blessed their home. Months later, they reported this incident, after others from the church came forward and complained about [REDACTED]'s sexual misconduct.

5 At trial, [REDACTED] testified that he told victims what he would be doing ahead of time and that they consented to this form of touching. Both victims testified that they were not told ahead of time and did not consent to what occurred. In oral Reasons for Judgment (that dealt with all 9 charges faced by [REDACTED]), I accepted the victims' version of events, rejected [REDACTED]'s explanation and found him guilty beyond a reasonable doubt.

[REDACTED] and His Victims

6 [REDACTED] is 39 years old. He has no prior criminal record. [REDACTED] hails from the Philippines. He came to Canada in 2005 and has been a permanent resident since 2012. He is married with 4 children, between the ages of 6 and 20.

7 Since coming to Canada, [REDACTED] has ministered at two evangelical Christian churches. He was asked to leave both. The first involved internal church politics. His most recent ejection related to the allegations of sexual impropriety, although [REDACTED] believes that the charges against him were the instrument of a political conspiracy to oust him from his church.

8 As well as being a pastor, [REDACTED] took on other jobs to meet the needs of his family. While on bail, he furthered his education by obtaining a Paralegal Diploma at the Canadian Business College. He completed a six-month placement with a law office. [REDACTED] was not allowed to work in any capacity for almost 3 years because of a house arrest bail condition. I will have more to say about this shortly.

9 The Pre-Sentence Report (PSR) prepared for this case is partly positive and partly negative. [REDACTED] insists that he had the consent of both victims, an assertion that I rejected. At the same time, he told the author of the PSR that he "regrets" that he performed the ceremony in the way that he did. Interestingly, he said that he told the victims that "no pastor will do this, but it will help you." Consistent with his testimony at trial, [REDACTED] reported to the author of the PSR that, although he had observed this ceremony performed in the Philippines, he had never performed it before. As the PSR author stated: "He claimed he will never complete the cleanse again if given the chance."

10 The PSR author expressed the following concerns about [REDACTED]:

                     While the subject states that he is upset about what has happened, this writer questions if this is directed at the effect his arrest has had on his own life, rather than towards the victims. There did not appear to be much remorse for the victims and he did not seem to be able to articulate any thoughts or feelings they may have had in relation to the offences. He continued to claim that he believed they consent, and did not appear to recognize any problems with his actions.

11 The victims prepared statements describing the impact of [REDACTED]'s offending. They are both distressed by [REDACTED]'s abuse of the trust that they placed in him as a pastor.

The Positions of Counsel

12 For the Crown, [REDACTED] submits that a sentence of 3 to 5 months' imprisonment is appropriate, less one-month to reflect [REDACTED]'s bail conditions. She relies heavily on the abuse of trust reflected in the offences.

13 On behalf of [REDACTED], [REDACTED] submits that, given the time that [REDACTED] has spent on house arrest, a suspended sentence, followed by 2 years of probation, would meet the applicable aims of sentencing.

Analysis

14 The most serious feature of these offences is [REDACTED]'s abuse of his position of trust and authority. Section 718.2(a)(iii) of the Criminal Code identifies as an aggravating factor "evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim." In the context of sexual offending, this offence feature requires more emphasis be placed on the principles of general deterrence and denunciation: s. 718(a) and (b).

15 The violation of trust in this case was egregious. Not only did [REDACTED]'s position in the church create opportunities to interact with the victims -- he committed his offences under the guise of performing a legitimate religious ceremony.

16 This case is somewhat similar to R. v. Si, 2014 ONSC 4178. Si was a pastor in training who touched the heads of two complainants with his crotch, ostensibly for religious purposes. Si was found guilty of two counts of assault. The trial judge imposed a suspended sentence. In dismissing Si's appeal from sentence, my colleague Code J. made the following observations at paras. 42-44:

                     The trial judge accurately identified the mitigating and aggravating circumstances in the case. Si was a first offender with otherwise excellent antecedents. In addition, he had suffered stress due to the delays involved in two separate trials. Finally, he had been under restrictive terms of bail for much of this period. On the other hand, the offences involved a breach of trust. In addition, Si had repeated the breach of trust in the face of a clear warning from Pastor Zhang. Finally, he showed little insight or remorse.

                     The trial judge gave effect to the mitigating circumstances by declining to impose a short custodial sentence, which might otherwise have been appropriate. She went on to hold that a conditional discharge would not be in the public interest, given the aggravating circumstances.

                     I am satisfied that the trial judge made no error in principle in imposing a suspended sentence and probation.

17 Like Si, [REDACTED] is a first offender. His conduct, while reprehensible, was fleeting. Unfortunately, there is no genuine remorse. [REDACTED] believes that he has done nothing wrong. This, of course, is not an aggravating factor. However, this lack of remorse requires that, in addition to general deterrence and denunciation, I must also address specific deterrence.

18 Even though [REDACTED] is a first offender, his offending is worthy of imprisonment. The range of sentence identified by [REDACTED] for the Crown is reasonable. Only in this way, can the impact of [REDACTED]'s offending on the victims be meaningfully addressed, and general deterrence and denunciation properly reflected. Had there been a plea of guilty or at least some semblance of remorse after trial, a different approach might be warranted.

19 An important consideration in crafting an appropriate sentence is the impact of [REDACTED]'s bail conditions. He spent 5 days in pre-sentence custody. [REDACTED] was released on a recognizance on March 18, 2013 and has been subject to a house arrest condition ever since. The condition allows for the typical exceptions for medical emergencies, lawyer meetings and court appearances, all requiring accompaniment by a surety. A variation was achieved in October of 2013, permitting [REDACTED] and his family to be outside of Ontario for a week. At the same time, another exception was created that allowed [REDACTED] to attend the Canadian Business College, without being in the presence of his sureties.

20 This bail order was made with the consent of [REDACTED], who was not represented by [REDACTED] at the time. In addition to the October 2013 variation, other requests were made of the Crown (not [REDACTED]) to agree to delete the house arrest condition. These requests were refused. [REDACTED] did not seek to vary his bail at the conclusion of the preliminary inquiry (Criminal Code, s. 523(2)(b)), nor was an application brought under s. 520.

21 [REDACTED] originally faced charges involving 6 parishioners. He was acquitted on charges relating to 4 of them. Nevertheless, all of the complainants were entitled to a level of protection and a zone of comfort as the case made its way through the system. Moreover, given the number of allegations against [REDACTED] at the time, it was also sensible that a bail order be crafted in a manner that restricted his opportunities to commit similar offences against other individuals in the community. The question is whether house arrest was necessary to achieve these goals, especially given that all of the allegations were connected to the church (but not necessarily restricted to church property).

22 Experience in the Toronto courts demonstrates that house arrest is routinely requested, often consented to, and ultimately imposed with great regularity. Given the potential deprivation of liberty and hardship inherent in house arrest, care should be exercised before imposing this condition. Less onerous alternatives should be considered. When the Crown insists on stringent house arrest (as a pre-condition to a consent release, or otherwise), it should realize that this position might have an impact on sentencing down the road. As Rosenberg J.A. held in R. v. Downes (2006), 205 C.C.C. (3d) 488 (Ont. C.A.), at pp. 497-498: "House arrest is a form of punishment, albeit of a different character than actual incarceration. Pre-sentence house arrest varies little in character from the house arrest that is often imposed as a term of a conditional sentence under s. 742.1 of the Criminal Code."

23 The Court of Appeal has generally limited credit to situations of "strict" house arrest conditions that materially impact on an accused person's life: see R. v. Dragos (2012), 291 C.C.C. (3d) 350 (Ont. C.A.), at pp. 370-371 and R. v. E.(H.), 2015 ONCA 532, at para. 54. Moreover, there is some expectation that an accused person will take steps to vary bail conditions he or she believes are too harsh: see R. v. Junkert (2010), 259 C.C.C. (3d) 14 (Ont. C.A.), at p. 22, E.(H.), supra and R. v. Peterkin, 2013 ONSC 2116, at para. 41.

24 In this case, the house arrest condition was restrictive. On the record before me, I am satisfied that it had a substantial impact on [REDACTED]'s life. Most importantly, [REDACTED] was not permitted to work, even though he has 4 children. The Crown (again, not [REDACTED]) resisted a broader variation of the bail, one that would have permitted [REDACTED] to work. Given that [REDACTED]'s bail was varied so that he could attend college unaccompanied, it is difficult to understand why a less stringent condition could not have been crafted, one that would have permitted [REDACTED] to work and support his family over the last 3 years. Of course, work as a pastor, or any other line of work that risked the exploitation of others, would have been out of the question.

25 More could have been done to address this situation. However, there is every indication that the Crown would have opposed applications under ss. 520 or 523(2)(b). And there is no guarantee of success on bail review applications, contested or otherwise. But the fact remains that [REDACTED] did spend almost 3 years under stringent house arrest conditions. It is like he served a conditional sentence in advance of his convictions (one lasting 3 years, when s. 742.1 limits conditional sentences to less than two years). Fairness and the fundamental principle of proportionality (s. 718.1) require that it be reflected in the sentence I ultimately impose.

26 I agree with [REDACTED] that 5 months' imprisonment would properly reflect the seriousness of [REDACTED]'s disgraceful and harmful behaviour. But in my view, he should receive credit (or mitigating value) for the house arrest condition, in an amount that is equal to the period of custody requested by the Crown.

Conclusion

27 I suspend the passing of sentence and place [REDACTED] on probation for three years, on terms to be imposed after hearing further submissions from counsel. The terms will be aimed at prohibiting contact with the complainants and victims in this case, as well as protecting the public. I also make a D.N.A. order, as well as an order under s. 109 of the Criminal Code for 10 years. By virtue of s. 490.013(2.1), and because [REDACTED] was found guilty of two designated offences, he must comply with the requirements of the Sex Offender Information Registration Act, S.C. 2004, c. 10, for life: see R. v. R.L., [2015] O.J. No. 3692 (S.C.J.).

[REDACTED]