Counsel:

Colleen A. McDuff, for the Crown.

Evan J. Roitenberg, for the Accused.

       C. CARLSON PROV. CT. J.:—

Introduction

¶ 1      On December 7, 2011, Mr. Graham James entered guilty pleas to two offences.

¶ 2      Mr. James pleaded guilty to repeatedly sexually assaulting Mr. Theoren Fleury between September 1, 1983 and August 31, 1985, in Winnipeg, Manitoba and elsewhere in the Province of Saskatchewan, contrary to section 246.1 of the Criminal Code. Mr. James also pleaded guilty to repeatedly sexually assaulting Mr. Todd Holt between May 1, 1989 and April 30, 1994, at or near Swift Current in the Province of Saskatchewan, contrary to section 271 of the Criminal Code. The Saskatchewan charges were transferred to Manitoba. Sections 246.1 and 271 of the Criminal Code referred to were the sections that, at the time the offences were committed, contained the sexual assault provisions.

¶ 3      The Crown proceeded by indictment. Mr. James elected to deal with these matters in Provincial Court. After the guilty pleas were entered, the matters were adjourned to February 22, 2012 for sentencing.

¶ 4      On February 22, 2012, Crown and defence counsel made submissions at the sentencing hearing. The matter was adjourned to this date for the imposition of sentence on Mr. James. On March 19, 2012, the Court heard brief submissions from counsel relative to the decision of the Manitoba Court of Appeal in R. v. Sinclair, (2012 MBCA 24), released on March 15, 2012, in terms of how, if any, it might impact on the Court's decision as to an appropriate sentence for Mr. James.

¶ 5      The issue for the Court is to determine the appropriate sentence to be imposed on Mr. James for these two offences.

¶ 6      The Court is aware that this case has attracted significant public attention, and that there is a sense of outrage about these offences. That is understandable. Serious offences were committed against vulnerable victims, with devastating results for those victims. There is no sentence this Court can impose that will give back to Mr. Holt and Mr. Fleury that which was taken from them by Mr. James. The Court expects there is no sentence it can impose that the victims, and indeed many members of the public, will find satisfactory. But the Court is confident that the victims of Mr. James' offences, and the public, appreciate that what is a fit and appropriate sentence for Mr. James for these offences, must be determined based on the application of sentencing principles that have been set out by Parliament in the Criminal Code.

The unique nature of this case

¶ 7      This case is unique. Its uniqueness, apart from its notoriety, stems primarily from issues relative to timing. When the offences happened, when they were disclosed by the respective victims, when Mr. James was previously sentenced for other offences, and what has transpired since that prior sentencing, are factors that combine to make the application of sentencing principles to the facts a challenge to the Court in determining an appropriate sentence for Mr. James.

¶ 8      On January 2, 1997, Mr. James pleaded guilty and was sentenced in the Provincial Court of Alberta, on two counts of repeated sexual assault, against Mr. Sheldon Kennedy and another victim whose name is still protected by publication ban. Those offences were committed from 1984 to 1994. Mr. James was sentenced to three and a half years in prison on each charge, and the sentences were concurrent to each other. On February 27, 1998, Mr. James pleaded guilty to one count of indecent assault on a third victim that happened in 1971. The conduct there was an attempted fondling of the victim. Mr. James was sentenced to 6 months for that offence, concurrent to the sentence he was then serving. Mr. James served his sentence as required, and completed his parole in 2000. Then, in or about 2010, Mr. Fleury and Mr. Holt disclosed to police that they had been repeatedly sexually assaulted by Mr. James. The circumstances and nature of the offences committed against Mr. Holt and Mr. Fleury are similar in nearly all material respects to those committed against Mr. Kennedy and the other victim. Mr. James is now back before the Court, 15 years after his convictions for the sexual assaults on Mr. Kennedy and the other victim, being sentenced for the sexual assaults on Mr. Fleury and Mr. Holt.

¶ 9      This is not, as the Court often sees, a case of a person re-offending after serving a sentence. The two offences for which the Court is now sentencing Mr. James took place before he was sentenced for the other offences in 1997. These offences were not disclosed until Mr. James had long finished serving his 1997 sentence. This is not a case of simply imposing sentences for historical sexual assaults. Rather, the Court must impose sentences for historical sexual assaults that were committed at or about the same time as other sexual assaults for which Mr. James was sentenced 15 years ago, and in the context of Mr. James having completed his sentence, and having not re-offended.

¶ 10      These circumstances present a challenge to the Court. It is important to be clear that there is absolutely no fault to be attributed to the victims for disclosing the offences when they did. Indeed, the strength of Mr. Fleury and Mr. Holt in making those disclosures warrants tremendous respect.

Approach to be used by the Court

¶ 11      In the unique circumstances of this case, the Court, as a starting point, must consider what total sentence Mr. James may have received in 1997 if he had then been sentenced for the offences against Mr. Fleury and Mr. Holt as well as the two for which he was then sentenced involving repeated sexual assaults. It is not however then simply a mathematical exercise of imposing a sentence equal to the difference in time between what was imposed for two offences in 1997 and what may have been imposed for all four offences at that time. It is more complex than that. While bearing in mind what an overall sentence may have been in 1997 for all four offences, the Court needs to consider the passage of time and the information that it now has that was not available in 1997.

¶ 12      Mr. James has not re-offended. He must not be sentenced for these offences as though they were offences that were committed after his 1997 sentencing. To do so would offend the Supreme Court of Canada's ruling in R. v. Skolnick, [1982] 2 SCR 47, confirming the common law principle, known as the Coke rule, that in order for a more severe penalty to be imposed for offences than for previously sentenced offences, they must have been committed after the convictions for the previously sentenced offences. That is not the case here.

¶ 13      Further, the Court is legally obligated to acknowledge that the sentence in 1997 was an appropriate sentence, and cannot use the sentencing for the two offences now before the Court, to effectively diminish or enhance that sentence.

Positions on Sentence

¶ 14      There is not a joint recommendation as to sentence.

¶ 15      The maximum sentence available to the Court to impose is ten years imprisonment for each offence. There is no mandatory minimum sentence.

¶ 16      The Crown argues that the appropriate sentence for Mr. James for these offences is one of six years imprisonment. The Crown says that if Mr. James had been sentenced on these matters in 1997, together with the ones he was sentenced for in 1997, and the Court had then all the information it has now, a sentence equivalent to nine years would not have been unreasonable. The Crown says that, because there are two offences that are separate and distinct from each other and involve separate victims, consecutive sentences of five or six years for each of the offences now before the Court, should be considered, prior to an assessment of totality. The Crown says however, that in the interests of totality, and taking into account the sentences imposed in 1997, imposing a sentence of six years for each of the offences now before the Court, concurrent to the other, is appropriate.

¶ 17      Defence counsel argues that the principles of sentencing may be achieved by imposing on Mr. James a total sentence of 12 to 18 months of imprisonment for these offences, to be served by way of a conditional sentence order. He says that if these two offences had been dealt with in 1997 with the other offences, when Mr. James had no record and had prospects of rehabilitation, a total sentence of four and a half years would have been reasonable. He says now, given Mr. James' demonstrated rehabilitation, and the fact that he has not re-offended in the 12 years since he finished his sentence, a sentence of 12 to 18 months for these two offences is appropriate.

Circumstances of the offences

¶ 18      Mr. Fleury and Mr. Holt are now mature and articulate adults. They have succeeded in life, with much personal struggle, in spite of Mr. James' actions. But, it is important to remember that at the time in issue, they were young, teenage boys. They had dreams and aspirations to be professional hockey players. They had hockey talent. Their talent was spotted by Mr. James, whose job it was, as a coach and scout, to find, cultivate and promote hockey talent. Because Mr. James was, by all accounts, so revered by the Canadian hockey community, Mr. Fleury and Mr. Holt, and their families, were thrilled when Mr. James noticed them and took it on himself to manage their hockey careers. The management of their careers, starting at the young age of 14 in the case of Mr. Fleury, and age 15 in the case of Mr. Holt, evolved into management of most aspects of their lives, including schooling, accommodation, travelling and of course, hockey. Mr. Fleury and Mr. Holt were vulnerable and trusted Mr. James. Mr. James abused that trust. He controlled what would happen with their hopes and dreams of playing professional hockey. He could make or break them. He told them that. And, he did actually have the power to do so. Mr. Fleury knew it. Mr. Holt knew it. And Mr. James made sure they knew it. That knowledge is what made the sexual assaults possible, and created a situation in which Mr. Fleury and Mr. Holt, as teenagers, away from their families, and wanting above all else to play professional hockey, were entirely trapped. If they said anything about the assaults, they believed, and in fact it was so, that Mr. James could have put an end to their hockey aspirations. Mr. James could essentially do what he wanted to do to them, and could rely on their compliance and silence, because he controlled whether they would get the chance at what they really wanted or would have their dreams crushed. And so, Mr. Fleury and Mr. Holt became mired in putting up with Mr. James' sexual assaults on them, and not saying anything about them to anyone, in the hopes that they could just keep playing hockey and maybe, one day, reach the National Hockey League. The sexual assaults on both Mr. Fleury and Mr. Holt were repeated and regular, encompassing many, many assaults, and continuing over a long span of time, two years in the case of Mr. Fleury and five years in the case of Mr. Holt.

The sexual assaults on Mr. Fleury

¶ 19      Mr. Fleury met Mr. James in 1982 when he was 14 years old. He lived in Russell, Manitoba. Mr. James was a guest coach at a hockey camp in Russell. He was also a scout with the Winnipeg Warriors hockey team, and started recruiting Mr. Fleury for that team. Mr. Fleury's family was having difficulties and he was staying with another family in Russell. Mr. James knew this. In the summer of 1983, Mr. James took Mr. Fleury, then age 15, and two other young men, ages 13 and 19, on a trip to the U.S. to watch professional baseball. During this trip, Mr. James shared a bed with Mr. Fleury and the first sexual assault occurred, a touching of Mr. Fleury's buttocks by Mr. James. Mr. Fleury was confused about the actions of this man he respected and for whose team he wanted to play. He was also embarrassed, and did not know what to do. He did not tell anyone.

¶ 20      Mr. James obtained the consent of Mr. Fleury's parents for Mr. Fleury to move to Winnipeg in order to advance Mr. Fleury's hockey career. Mr. James made the arrangements for Mr. Fleury to billet with an elderly couple in Winnipeg and to attend school. This was in August, 1983.

¶ 21      Mr. Fleury was drafted by the Winnipeg Warriors, a team in the Western Hockey League. Mr. James took Mr. Fleury to practices and games and to all his activities. Mr. James gave him material items and provided opportunities, including numerous trips.

¶ 22      Consistent during this time was Mr. James' promise that he would do everything he could to get Mr. Fleury to the National Hockey League. Given Mr. James' reputation and the respect Mr. James garnered in the hockey world, Mr. Fleury believed him.

¶ 23      Mr. James persuaded the elderly couple Mr. Fleury was billeting with that, in order for Mr. Fleury to keep his grades up (which was required for him to keep playing hockey), Mr. Fleury needed to spend two evenings a week at Mr. James' apartment for tutoring sessions, and that the sessions needed to be overnight. Since Mr. James had been a substitute teacher, the couple accepted this and agreed.

¶ 24      No tutoring took place. Instead, Mr. Fleury was sexually assaulted during these times. Mr. Fleury slept on a cot in Mr. James' bedroom. The bedroom windows had some covering on them so that the room was dark. Typically, Mr. James would come to Mr. Fleury's cot and grope Mr. Fleury's buttocks and feet. Mr. Fleury would try to roll himself up in blankets so that Mr. James could not touch him but Mr. James kept trying to pull away the blankets. This would continue through the night. The result was that Mr. Fleury got little sleep and was constantly exhausted. His grades fell.

¶ 25      Mr. James persisted in this behaviour, twice a week, until about May, 1984. Mr. Fleury estimates there were about 80 assaults of this type.

¶ 26      In May, 1984, the assaults escalated. Mr. James made arrangements to take Mr. Fleury on a road trip to the Maritimes. The night before they were to leave, when Mr. Fleury was sleeping at Mr. James' residence, Mr. James massaged Mr. Fleury's feet. That aroused Mr. James and Mr. James masturbated himself to the point where he ejaculated on Mr. Fleury's feet. Mr. James then cleaned the ejaculate off Mr. Fleury's feet with a towel and performed fellatio on Mr. Fleury. This was the first sexual assault of this type. Mr. Fleury says he was so exhausted from constantly trying to fend off Mr. James' assaults that he simply could not resist anymore. They drove to Halifax, and then to some other cities in the U.S. Sexual assaults of this same type took place virtually every night of this approximately month long trip. Mr. Fleury learned that it was easier to endure the relatively short time it took for the assaults to happen, because then he could actually get some sleep.

¶ 27      Mr. Fleury was in an unimaginable situation. He was just 15 years old. There was really nothing for him if he returned to Russell, and his family did not have resources to provide to him. Mr. James continued to tell him that he was a great hockey player and that with his hockey connections, Mr. Fleury would make it to the National Hockey League.

¶ 28      In the summer of 1984, the Winnipeg Warriors team was sold to Moose Jaw, and Mr. James was the head coach. Mr. Fleury was then 16 years old. Mr. James made arrangements for a billet family for Mr. Fleury in Moose Jaw. Mr. James convinced the woman with whom Mr. Fleury was billeting that Mr. Fleury had to spend two nights a week at his residence for tutoring. As before, there was no tutoring. Instead, sexual assaults occurred of the same type - that is Mr. James massaging Mr. Fleury's feet, becoming aroused and ejaculating and then performing fellatio on Mr. Fleury.

¶ 29      Mr. Fleury estimates he was sexually assaulted by Mr. James while in Moose Jaw about 150 times. At age 16, he remained in this terrible dilemma - whether to spend the time fighting Mr. James off, and getting no sleep, or spend ten minutes to get the assault over with so he could get to sleep. It was easier to get it over with and get to sleep. Mr. Fleury describes that when he was being sexually assaulted he would just "check out" mentally.

¶ 30      In the summer of 1985, Mr. James took Mr. Fleury and Mr. Kennedy on a trip to Disneyland. The sexual assaults continued on the trip, alternating between Mr. Fleury and Mr. Kennedy. That summer, Mr. James was ultimately let go by the Moose Jaw Warriors. Mr. James tried to persuade Mr. Fleury to return to Winnipeg with him. Mr. Fleury declined, and stayed in Moose Jaw. Mr. James returned to Winnipeg. That is when the assaults on Mr. Fleury stopped.

¶ 31      Mr. Fleury and Mr. James did continue some dealings with each other after this. They spoke on the phone from time to time. In 1994, they purchased the Calgary Hitmen hockey team together.

The sexual assaults on Mr. Holt

¶ 32      The sexual assaults on Mr. Holt took place over a span of five years, from 1989 to 1994, from when Mr. Holt was 15 years old until he was 20 years old. They all took place in Swift Current, Saskatchewan, while Mr. James was coach of the Swift Current Broncos team. Mr. Holt says there were hundreds of such assaults.

¶ 33      Just to put this in context, the assaults on Mr. Holt started several years after Mr. James' assaults on Mr. Fleury had stopped.

¶ 34      In 1989, Mr. James was scouting Mr. Holt, and invited Mr. Holt to stay at his residence in Winnipeg for a weekend. During that weekend, Mr. Holt woke up to find Mr. James fondling his buttocks and penis. Mr. James said he was just joking around and apologized.

¶ 35      Mr. Holt began playing for the Swift Current Broncos. Mr. James was his coach. During a team road trip, when Mr. Holt was 15 years old, Mr. Holt was caught smoking and Mr. James punished him by making him sleep in his room. Mr. James tried to touch Mr. Holt. Mr. Holt tried to wrap himself up in blankets to avoid the touching. Mr. James apologized for his conduct during the road trip and told him he was gay and was lonely.

¶ 36      Mr. James started offering Mr. Holt money and gifts in exchange for sexual acts. Mr. James made Mr. Holt feel guilty. It became routine that every Monday and Wednesday Mr. Holt would go to Mr. James' residence and be sexually assaulted. The windows of Mr. James' room were covered with something so the room was dark. These assaults happened for at least five months of the year, for five years. At some point, Mr. James billeted Mr. Holt himself so that they were actually living together.

¶ 37      The sexual assaults were of the same nature as have been described relative to Mr. Fleury. They consisted of Mr. James fondling Mr. Holt's penis, performing fellatio on Mr. Holt, having Mr. Holt masturbate on Mr. James' penis and scrotum and on Mr. James' feet. Mr. James would sometimes hold both his own penis and Mr. Holt's penis together while he masturbated them both.

¶ 38      Mr. Holt's family was of simple means. Mr. Holt believed that Mr. James could make or ruin his career. Mr. Holt resisted Mr. James' advances on a number of occasions. Mr. James told Mr. Holt that he was not a good hockey player, and that if he did not go along with the assaults, Mr. James would make sure that Mr. Holt did not "make it".

¶ 39      Mr. Holt was in a horrible situation for a five year period. He could not get out. He asked Mr. James to be traded but Mr. James told him that other coaches would not want him. Mr. James would give Mr. Holt money, gifts, clothing, concert tickets, and extra ice time in exchange for the sexual acts. But when Mr. Holt gave any indication of non compliance Mr James threatened that he would "ruin his life", that he said he would "make a couple of calls and you'll be out of hockey" that "you think you'll make it; you won't". Because of the power Mr. Holt believed Mr. James had in the hockey world, Mr. Holt believed Mr. James could ruin his life.

¶ 40      The assaults stopped during the 1993/1994 season when Mr. Holt left the Swift Current Broncos.

Positions on the facts

¶ 41      The Crown says that there were hundreds of sexual assaults on each of the two victims.

¶ 42      Defence counsel says that Mr. James admits the assaults were repeated, and over a long span of time, but denies they were nearly as frequent as the victims allege.

¶ 43      The Crown says the facts are consistent with Mr. James grooming both victims, by manipulating them and their families, with promises of promoting their hockey careers, so that he obtained essentially total control over them, and in doing so was able to have total access to them. He put them in a position in which they, as teenage boys without significant supports other than him, had nowhere to turn without risking their hockey careers being snuffed out. The Crown says all of this was pre-meditated in order that he was able to sexually assault them at will. His persistent efforts broke down their resistance. They had no way out. The report of psychiatrist Dr. P.C., filed by the Crown, sets out the five stages of "grooming". The Crown's position is that Mr. James' behaviour was entirely consistent with what Dr. P.C. describes and was a classic case of grooming.

¶ 44      Defence counsel admits the facts of the assaults and that they were the product of an abuse of trust. But, he says that this was not a case of Mr. James "grooming" his victims. Mr. James, as a result of rehabilitative work he did in custody, has now developed insight and recognizes now that he abused the trust his victims had in him and that his actions were sexual assault. But, defence counsel says that, at the time, Mr. James did not recognize that. Mr. James' position is that he really did care about the victims and, at the time, felt he was involved in a loving and caring relationship with each of them, and did not appreciate that he was abusing their trust. Although that is acknowledged to have been a cognitive distortion that he now recognizes was false, defence counsel says that Mr. James could not have intentionally "groomed" the victims, because at the time he did not have the insight he does now, and did not realize he was abusing their trust.

¶ 45      In the absence of evidence called by the Crown to establish facts, the Court must accept Mr. James' version. As to the "grooming" behaviour, the Court must accept that subjectively Mr. James, at the time, may not have appreciated that he was grooming Mr. Fleury and Mr. Holt to become victims. There is no doubt, however, that objectively, that is exactly what he did do.

Similarities to the facts of the offences for which Mr. James was previously sentenced

¶ 46      It is important to note that the circumstances of the repeated sexual assaults on Mr. Fleury and Mr. Holt were the same as those on Mr. Kennedy and the other victim. The transcript of the 1997 sentencing discloses the same pattern of using, as bait, the promise of a professional hockey career in order to establish and maintain a relationship with each victim and in order to facilitate the repeated sexual assaults. All four victims were teenagers. Details of the offences against all four victims are chillingly similar, including how the sexual assaults started and then escalated in nature and frequency, the fact that Mr. James had the windows of his bedroom covered, and that, as to Mr. Fleury, Mr. Holt and Mr. Kennedy, he set up regular twice weekly sessions said to be tutoring sessions during which assaults took place.

Circumstances of the offender

¶ 47      Mr. James is now 59 years old. He has a grade 12 education and a Bachelor of Arts degree from the University of Manitoba. He moved around with his family when he was young. He came to Winnipeg in 1965 and stayed until he finished grade 12. In the late 1960s and into the 1970s, he played hockey himself. He started assistant coaching hockey at age 17 and coached while in university. He was head coach of some Winnipeg Bantam and Midget teams in 1975/1976, and started doing some scouting for the Western Hockey League in 1978/1979. He coached the Fort Garry Blues for four years, while still scouting for the Western Hockey League. He was also a substitute teacher. He then became a full time scout for the Winnipeg Warriors. In 1984/1985 he moved to Moose Jaw for a full time coaching job. He left that job at the end of the 1985 season and moved back to Winnipeg to coach the South Blues team. In 1986 he moved to Swift Current where he was head coach and general manager of the Swift Current Broncos. He was in charge of all hockey operations there. In 1994/1995 he became general manager and part owner of the Calgary Hitmen hockey team, and he coached that team for the first season. In 1996, Mr. Sheldon Kennedy made the allegations that he had been sexually abused by Mr. James. An investigation into those allegations took place. That ended Mr. James' involvement in organized hockey in Canada.

¶ 48      After being sentenced to three and a half years in prison for the sexual assaults on Mr. Kennedy and the other victim, in 1997, Mr. James spent five to six months at the Edmonton maximum security institution. He was then transferred to the Rockwood Institution in Manitoba. While at Rockwood Institution, he finished his university degree and worked in the Rockwood Institution kitchen. He was paroled in 1998. When he was released, he moved to Montreal, where he remained on parole, monitored by a parole officer and a psychologist. He completed his parole in 2000.

¶ 49      Mr. James then accepted a job coaching hockey in Spain. He told his potential employer that he could not coach in Canada and could not coach teenagers. Safeguards were put in place so he would not be alone with teenagers there. He spent just over two years in Spain.

¶ 50      He returned to Montreal and obtained a job in 2004 with a software evaluation business. He has been employed continuously since 2004 with that company and still is. In 2008, he went to Mexico to open up a branch office for his employer.

¶ 51      In 2007, Mr. James applied for and was granted a pardon for the offences he was sentenced for in 1997.

¶ 52      In or about 2010, when Mr. James was advised that police in Canada wanted to talk to him about allegations made by Mr. Fleury and Mr. Holt, he returned to Canada voluntarily. He was arrested, spent five weeks in custody and was granted bail. While on bail he has continued to live and work in Montreal. He still has his job with the same employer.

¶ 53      There is no doubt that Mr. James made many positive contributions to the institution of hockey in Canada. His offences committed against Mr. Fleury and Mr. Holt, and Mr. Kennedy and the other victim, of course, have greatly overshadowed those contributions.

¶ 54      Mr. James, in Court, apologized to the hockey public, the institution of hockey, the fans, the players and the parents. He admitted he abused the trust that parents and players put in him. He apologized to Mr. Holt and Mr. Fleury and admitted his behaviour was wrong.

Rehabilitation and Risk

¶ 55      It is important to consider what Mr. James has done in terms of rehabilitation, and to assess what risk, if any, he may still pose.

¶ 56      The Court does not have the psychological assessment of Mr. James that was done for his 1997 sentencing, nor any of the records or assessments done while Mr. James was in custody in the Edmonton or Rockwood institutions, and relies on the submissions of counsel in this regard.

¶ 57      Defence counsel advises that Mr. James was diagnosed, in a report provided for the 1997 sentencing, as a homosexual hebephile. Hebephilia is described as a sexual attraction to pubescent and post-pubescent children. Given that Mr. James is homosexual, his attraction is to young men from 15 to about 25 years old. He self reported this, and has never denied it.

¶ 58      When Mr. James was at the Edmonton institution he had an intensive assessment done by a psychologist. The psychologist concluded that while Mr. James expressed remorse, he had little insight into his offences. Mr. James tried to justify his actions as being within loving friendships.

¶ 59      Indeed this lack of insight that Mr. James had when first incarcerated in 1997 is consistent with information the Crown reported, as to the attitude Mr. James expressed to a former friend of Mr. Fleury's, with whom Mr. James had remained friends. At that time Mr. James rationalized the sexual contact he had with the victims as part of legitimate relationships. He felt that he was misunderstood and that it was acceptable for him to have had sexual relations with his teenage victims.

¶ 60      While at Rockwood Institution, Mr. James had at least 32 weekly, one on one, counselling sessions. Mr. James voluntarily withdrew his application for early parole, so that he could complete his treatment. The focus of his treatment at Rockwood Institution was for him to understand and come to grips with the fact that, although he may have believed he had the best interests of the victims at heart, he hurt them by his actions. He needed to understand the difference between consent and compliance. The reports say that he participated in the treatment and applied himself earnestly. Defence counsel says that during these sessions, at some point, Mr. James had an epiphany - he realized that he never had the true consent of his victims for him to engage in sexual activity with them, and that he just obtained their compliance because of his position of power over them. Defence counsel says this was a realization that "shook him to his core". He realized his relationship with the victims was not a loving relationship, and he experienced regret, guilt and remorse. He also recognized that his victimization extended beyond the two victims themselves, to parents and the broader community. When released from Rockwood Institution on parole, he continued to see his psychologist. His risk to re-offend was assessed as low. Mr. James functioned in the community from his release until he was arrested on these offences in 2010, and after that, to the present, while on judicial interim release, with no allegations of re-offending.

¶ 61      While Mr. James was at Rockwood Institution and undergoing sex offender counselling, Mr. James voluntarily disclosed that there were other individuals he had offended against in the same way - that is, there were other players with whom he had abused his position of trust to entice them to engage in sexual activity with him. This initiated a police investigation. In particular, the police approached Mr. Fleury. Mr. Fleury denied the sexual assaults had happened. The police specifically asked Mr. James if Mr. Fleury was someone against whom Mr. James had offended. Mr. James did not deny it, and told the police he would discuss it with them if Mr. Fleury made allegations. Defence counsel says Mr. James was trying to be respectful of Mr. Fleury's decision as to whether he did or did not want to come forward.

¶ 62      Crown counsel and defence counsel each filed an expert report to address the issue of Mr. James' present assessed risk to the community. Crown counsel filed the report of Dr. P.C., a forensic psychiatrist, dated January 27, 2012. Defence counsel filed the report of psychologist Dr. H.V.G. dated October 28, 2011. Dr. H.V.G. met with Mr. James for one interview and reviewed 1998 assessment reports and police information for the two offences that Mr. James was sentenced for in 1997. Dr. P.C. never met with Mr. James, but he reviewed extensive materials relative to these offences and the ones for which Mr. James was previously sentenced.

¶ 63      Dr. H.V.G. concludes as follows:

¶ 64      Dr. P.C. opines that Mr. James has, secondary to hebephilia, the associated sexual deviance of partialism, or a foot fetish.

¶ 65      In terms of risk, Dr. P.C. says that "the most reliable predictor of future behaviour is past history".

¶ 66      Dr. P.C.'s opinion is:

¶ 67      He goes on to say that :

¶ 68      The Court accepts that Mr. James continues to have the same sexual preferences that he had when he committed these offences. In that sense, according to the experts, he remains a risk to adolescent boys, and the Court accepts that there will always be some risk of re-offending. But he has had rehabilitative treatment that has given him insight, and for the last 12 years, he has effectively used the strategies he has learned to manage his sexuality so that he does not commit offences.

Purpose and Principles of Sentencing

¶ 69      As stated earlier in this decision, the Court expects that no sentence it can impose will sufficiently penalize Mr. James in the eyes of his victims, or indeed in the eyes of the public. It is trite, but important to note that the Canadian criminal justice system is not one of vengeance. The Court's obligation is to craft a sentence based on legal principles that must be applied to the specific offences committed by the specific offender.

¶ 70      Section 718 of the Criminal Code provides as follows:

¶ 71      Other sentencing principles that the Criminal Code mandates the Court to specifically consider include the following:

¶ 72      The nature of the specific offence will often mandate which of the objectives of sentencing should be of paramount consideration on sentencing.

¶ 73      It is well established that in sexual assaults involving children, the objectives of denunciation and deterrence are to be given paramount consideration (s. 718.01).

¶ 74      What happened to Mr. Fleury and Mr. Holt is every child's worst nightmare, and every parent's worst nightmare. This case happens to have involved a hockey coach and teenage hockey players entrusted to his care. Because this case involves hockey, and prominent figures in the Canadian hockey world, it has drawn a lot of attention. But the message to be sent by this sentence in terms of denunciation and general deterrence go far beyond the arena of hockey. Every day, Canadian parents entrust their children to adults in authority, including teachers, coaches and mentors for all types of activities, from sports to dance to academic or spiritual activities. In order for children to have enhanced quality of life in our society, parents send children to school and sign them up for activities. Our society ultimately benefits from parents being able to do this. But to do this, parents need to be sure they can trust these adults not to take advantage of their children, and instead do their jobs, in terms of educating them or developing their skills, and respect the boundaries that are inherent in those relationships. When that trust is violated, when those boundaries are not respected, and when vulnerable children are taken advantage of by those adults, a very strong message of denunciation and general deterrence needs to be sent. Such conduct is reprehensible and will not be tolerated by society. When it occurs, it will be severely sanctioned.

Considerations for a Conditional Sentence Order

¶ 75      Defence counsel urges this Court to impose a conditional sentence order on Mr. James pursuant to s. 742.1 of the Criminal Code - that is, a sentence of imprisonment that would be served in the community subject to strict conditions.

¶ 76      The Supreme Court of Canada set out, in the case of R. v. Proulx, [2000] 1 S.C.R. 61, the process by which a court is to decide if a conditional sentence order may be imposed. First, the Court is to decide whether a penitentiary term, on the one hand (that is two years or more of imprisonment), and a non-custodial sentence on the other hand, must be excluded. If those are both excluded, then a conditional sentence order may be considered, and the Court goes to the second stage of deciding whether imposing a conditional sentence order will endanger the safety of the community and whether it can adequately address the sentencing principles of denunciation and deterrence.

¶ 77      A sentence that is limited to probation is clearly not appropriate here. The offences are too egregious for that. If a sentence of less than two years of imprisonment is appropriate, then a conditional sentence order may be considered. If the appropriate sentence is two years of imprisonment or more, then a conditional sentence order may not even be considered.

Consideration of length of sentence

¶ 78      The circumstances of the offences and of the offender have already been described.

Mitigating and aggravating factors

¶ 79      There are some mitigating factors here. Those are factors that are to Mr. James' credit and would tend to lessen the length of the sentence. These are as follows:

¶ 80      There are many aggravating factors here:

Case law

¶ 81      There are no reported cases like this one. There are however, some authorities that provide guidance.

Cases in which an offender is sentenced for offences that pre-date or were committed at around the same time as previously sentenced offences

¶ 82      The only cases filed by counsel that involve a sentencing of an accused for sexual assault offences committed prior to, or at the same time as other sexual assault offences for which he had previously been sentenced, are R. v. Stuckless, [1998] 127 C.C.C. (3d) 225 (Ont. C.A.), and R. v. B.J. (2003 MBCA 92). There is also a series of decisions in Ontario related to an offender named Mr. Rowe, to which the Court will refer.

¶ 83      In 1997, Mr. Stuckless pleaded guilty to 24 counts of indecent and sexual assaults committed over 20 years, between 1968 and 1988. The victims were boys between ages 10 and 15. There were hundreds of incidents. They happened when the accused worked for Maple Leaf Gardens as an assistant equipment manager, for schools as a teachers' assistant and for a number of minor hockey and lacrosse teams as a volunteer coach. Like in the case of Mr. James, Mr. Stuckless started by befriending the boys and gaining the trust of them and their parents. He would take them to hockey games and movies or buy them things. Many victims came from low income families. The relationships lasted from several days to several years. The sexual conduct included fondling, oral sex, masturbation, having the boys perform sexual acts with each other in front of him and another adult male, and participating with the boys and another adult male in group sex. The victims suffered significant impact including depression, loneliness, trauma, shame, guilt, fear, rage and self hatred. Some developed substance addictions, and problems in relationships. Many felt their lives had been ruined and several attempted suicide.

¶ 84      Mr. Stuckless had, long before dealing with these offences, pleaded guilty in 1996 and been sentenced on one count of sexual assault, involving 7 victims from 1978 to 1987, and a further two counts of sexual assault of one victim from 1992 to 1995. He was sentenced to 14 months on those offences, followed by probation. So, like Mr. James, he had completed his sentence before being charged with the plethora of offences that in fact pre-dated his original sentencing. Mr. Stuckless was arrested only 42 days after his release.

¶ 85      Like Mr. James, Mr. Stuckless was diagnosed as a homosexual hebephile. Like Mr. James, Mr. Stuckless was being sentenced for offences that had taken place prior to his previous sentencing for similar offences, and where the offending behaviour had taken place years prior. Like Mr. James, Mr. Stuckless had had some successful rehabilitation, though not demonstrated for nearly as long as Mr. James. Mr. Stuckless had more victims than Mr. James, the total range of time over which the offences were committed by Mr. Stuckless was longer, and some of the sex acts were more egregious. The impact on Mr. Stuckless' victims was similar to the impact that Mr. James' victims described.

¶ 86      The sentencing judge had imposed a total sentence of two years less a day, and three years of probation. The Ontario Court of Appeal allowed the Crown appeal, and held that a fit sentence would be a total of six years. Mr. Stuckless was credited with pre-sentence custody of 12 months, and sentenced to a further five years of imprisonment.

¶ 87      In R. v. B.J., 2003 CarswellMan269 (Man. C.A.), the accused pleaded guilty to one count of incest and one count of sexual assault on his daughter T. He had been previously convicted after trial of incest and sexual assault against his daughter J and was sentenced to seven years of imprisonment. The victim, T, had initially denied allegations that her father had sexually assaulted her. After he was sentenced on the matters involving J, T alleged sexual assault by her father. The incidents alleged predated the sentencing on the matters involving J. The Court of Appeal upheld the joint recommendation, which was for an additional three years, so that the effective total sentence was equivalent to 10 years.

¶ 88      In R. v. Rowe 2006 CanLii 26973 (ON SC), the offender was a priest who served First Nations communities in Northern Ontario. He was also a pilot and was involved in Cubs and Scouts activities on reserves. Between 1975 and 1987, Mr. Rowe sexually assaulted many young children, using a premeditated, predatory approach and abusing his position of trust. In 1994, Mr. Rowe was sentenced on 39 counts of indecent assault, against 15 males between ages eight and 14. The offences involved fondling and masturbation. All occurred during the 1975-1987 timeframe, and he had not committed any offences since then. He was sentenced to six years imprisonment. Later in 1994, after that sentencing, he pleaded guilty to four additional charges involving three victims. The offending behaviour was of the same type and had occurred during the 1975-1987 timeframe. He was sentenced to three years imprisonment on each charge but concurrent to the sentence he was then serving (pursuant to a plea agreement purporting to deal with any additional charges that came forward of "substantially similar" conduct).

¶ 89      Then, in 2007, after having served his six year sentence, more charges were laid against Mr. Rowe. In 2007, Mr. Rowe was convicted of a further ten counts of sexual assault and 17 counts of indecent assault (R. v. Rowe, [2007] O.J. No. 2997 (ON SC). Two of the offences involved more egregious sex acts, specifically repeated anal intercourse. He also pleaded guilty to a further 20 charges (which the Court found were covered by the previous plea agreement and did not impose a new sentence for those). All of the offences occurred during the 1975-1987 timeframe. He had not re-offended since 1987. It had been almost 20 years since the last incident of abuse. The Court, in sentencing Mr. Rowe to two new concurrent sentences of three years each, and one concurrent sentence of a year, made the comment at paragraph 22 that:

¶ 90      In 2009, a further 21 charges were laid against Mr. Rowe relative to 10 new complainants. Again, all the offences alleged were from the 1975-1987 timeframe. Mr. Rowe sought to have these stayed as an abuse of process, but his motion was dismissed (R. v. Rowe, 2009 CanLii 3564 (ON SC)). He was convicted of seven of the charges after trial (R. v. Rowe, 2009 CanLii 39054 (ON SC)). There is no reported decision as to his sentence on these offences.

"Major sexual assault" cases

¶ 91      The Crown argues the sexual assaults perpetrated by Mr. James were "major sexual assaults". The Courts of Appeal of Alberta and Manitoba have set "starting points" for sentencing for major sexual assaults. It is important to note that a starting point can be increased or decreased depending on the facts of the case, and does not mean it is a required minimum sentence.

¶ 92      The Alberta Court of Appeal in R. v. Sandercock (1985), 40 Alta. L.R. (2d) 265 set a three year starting point in cases of a single, major sexual assault committed by a mature accused of previous good character and with no record. That court specifically stated that the term "major sexual assault" includes not only "rape" but also attempted rape, fellatio, cunnilingus and buggery, where foreseeable major harm is present.

¶ 93      In R. v. S. (W.B.) (1992), 127 A.R. 65 (Alta. C.A.) a starting point of four years was set for offences involving sexual abuse of children by a person who, because of his relationship with the victim, is in a position of control and trust. Concurrent sentences of seven years were imposed on the offender for sexually assaulting his stepdaughter, age eight, and his step son, age 10. The assaults were repeated and serious, going from fondling to anal intercourse, and there were threats of punishment if disclosure was made.

¶ 94      The Manitoba Court of Appeal, in the cases of R. v. D.(C.) (1991), 75 Man. R. (2d) 14 and R. v. D.(M.F.) (1991), 75 Man. R. (2d), set the starting point for a major sexual assault committed in a family relationship where the victim is a young child and serious sexual acts are repeated over a period of time, at four to five years imprisonment.

¶ 95      In R. v. S. (W.B.) 1992 CarswellAlta 274, the Alberta Court of Appeal agreed with the Manitoba Court of Appeal in R. v. D. (M.F) that there should be, for sentencing purposes, a separate category of major sexual assault where the victim is a child, and the accused is a parent or person who, due to his relationship with the child, is in a position of control and trust vis-a-vis the child. Importantly, the Court said at paragraph 40:

¶ 96      The Court accepts that Mr. James' offences against Mr. Holt and Mr. Fleury were major sexual assaults. The Court notes that when sentencing Mr. James in 1997 for the sexual assaults on Mr. Kennedy and the other victim, Judge Maloney of the Provincial Court of Alberta found each offence to be a "major sexual assault", and then relied on the mitigating factors of an early guilty plea, remorse and acceptance of responsibility to accept the joint recommendation of three and a half years.

Historical sexual assault cases

¶ 97      The case of R. v. R. (A.), [1994] 4 W.W.R. 620 (Man. C.A.), was a sentencing on a historical sexual assault. The Manitoba Court of Appeal commented that "the antiquity of the offence is not usually a mitigating feature" and that "denunciation and general deterrence remain the predominant sentencing principles" (at paragraph 33), but went on to say that:

¶ 98      Defence counsel provided the case of R. v. Hands (1996 CarswellOnt 298), a decision of the Ontario General Division. Mr. Hands pleaded guilty to 19 counts of indecent assault against 19 different victims. The offences took place over a five to six year period, between the mid 1960s and 1971. The victims were aboriginal boys ages 12 to 15, who lived at a residential school in remote northwestern Ontario. They were living away from their families, and after school hours, were under the supervision of Mr. Hands. The accused was an army captain of the Anglican Church, which church ran the school. This was an abuse of trust situation. The impact on the victims was devastating and ongoing. The accused had not re-offended. A sentence of four years imprisonment was imposed.

¶ 99      R. v. D. (D.) (2000), 58 OR (3d) 788 (Ont. C.A.) was an appeal of a global nine year sentence, imposed for sex related offences involving four young boys. The offender appealed his sentence, arguing that his sentence should be the same as the six year sentence imposed in the Stuckless case. The offender groomed and sexually abused the boys, ages five to eight, repeatedly, for periods of two to seven years. He was in a position of trust. Mr. Justice Moldaver said that although Mr. Stuckless had a greater number of victims and offended for a longer period of time, there were features of Mr. D.D.'s offences that were more egregious. Further, the victims had to testify and he was convicted after trial. The sex acts included repeated and persistent acts of anal intercourse. Actual violence, extortion and death threats were used to gain compliance. The children were very young. The nine year sentence was upheld.

Cases in which conditional sentence order considered

¶ 100      In R. v. Haugo, 2006 BCPC 319, an offender pleaded guilty to four charges of sexual assault, sexual touching and indecent assault. The victims were female high school track athletes. The offender was their track coach. He touched them on breasts and genitals, including digital penetration. He suffered community condemnation due to publicity. The Court imposed a conditional sentence order of two years less a day, noting he was 69 years old, extremely low risk to reoffend, was profoundly remorseful, had no record and had supportive family and friends.

¶ 101      In R. v. B., (unreported, December 12, 2008, Man. QB), Justice McKelvey, declined to order a conditional sentence order for a grandfather who had sexually touched his nine year old granddaughter over her clothes on a number of occasions. He had no criminal record. The Court referred to the cases of R. v. G. (J.A.), 2008 MBCA 55 and R. v. R. (J.D.) (1998), 126 Man.R. (2d) 253 (C.A.). In both of those cases, the Manitoba Court of Appeal overturned conditional sentence orders made for offenders who had sexually touched children in a familial relationship, and imposed sentences of institutional imprisonment. Justice McKelvey referred to R. v. A.F.R. 2007 ONCA 114, in which the Ontario Court of Appeal stated:

¶ 102      In R. v. B. (B.L.) 2000 CarswellMan 466 (Man. C.A.), there were three child victims. The offender was a family friend of the first victim, and the uncle and godfather of the other two victims. The first victim, starting when he was six years old, until he was 15 (from 1982 until 1992) stayed with the offender at his apartment almost every weekend. The victim was sexually assaulted by the offender over a span of ten years, on hundreds of occasions. At age 12, the victim realized it was wrong and asked the offender to stop but the offender kept sexually assaulting him until he was 15 years old. The assaults included fellatio. As to the second and third victims, the offender fondled each of them about 20 times. The offender had no record, but lacked insight. He went through a preliminary hearing and then pleaded guilty to three counts of sexual assault. The Court of Appeal, noting the position of trust, set aside a conditional sentence order, and imposed a sentence of two years jail, with three years of probation.

Consideration of the very recent case of R. v. Sinclair

¶ 103      The Manitoba Court of Appeal released its decision in R. v. Sinclair, supra, on March 15, 2012. In that case, the Court of Appeal stayed the execution of the balance of an offender's incarceratory sentence, based on the fact that, during the relatively lengthy time Mr. Sinclair was on judicial interim release pending his sentence appeal, he had done work to rehabilitate and get on with his life, and had not re-offended. A stay of execution is a remedy within appellate jurisdiction. This Court must impose a fit and appropriate sentence on Mr. James in accordance with the sentencing principles. This Court does note, with interest, the comments referred to by Monnin J.A. at paragraph 18, of The Honourable Gilles Renaud in his text, The Sentencing Code of Canada: Principles and Objectives (Markham: LexisNexis Canada Inc., 2009). Those comments deal with the issue of re-incarceration after a period of release, and suggest that sentencing courts should be guided by the principle of restraint in recourse to incarceration, as provided in s. 718.2(d) and (e) of the Criminal Code, if two conditions precedent are met:

¶ 104      This Court has taken into account those comments in coming to its decision as to the appropriate sentence to be imposed on Mr. James.

The Principle of Totality

¶ 105      The principle of totality requires consideration in determining a sentence for Mr. James.

¶ 106      Chief Justice Lamer , in R. v. M. (C.A.) (1996), 46 C.R. (4th) 269 (S.C.C.), said the following about the principle of totality:

¶ 107      In R. v. Thomas (2006), CarswellOnt 2372 (Ont. C.A.), an accused was tried and convicted of 22 counts, involving various sexual offences, against 14 victims and sentenced to 12 years. On appeal, nine convictions were sent back and the sentence on the 13 convictions upheld was reduced to nine years. At the new trial on the nine matters the accused was convicted and sentenced to a total of three more years (nine consecutive sentences of four months each), so that the total sentence was 12 years. The Court of Appeal overturned the additional three years and imposed one additional year for a total sentence of 10 years instead of 12, on the basis that the three year additional sentence would offend the principle of totality.

¶ 108      In R. v. Traverse 2008 MBCA 110, the Manitoba Court of Appeal confirmed the approach to use when sentencing an offender for multiple offences that call for consecutive sentences is the one set out by the Supreme Court of Canada in R. v. M. (C.A.), supra. The judge must first determine the appropriate sentence for each offence, and deciding whether the sentences should be consecutive or not. If all or some of the offences are to be served consecutively the judge must then consider the cumulative effect of the total sentence and take one last look to see whether it exceeds the overall culpability of the offender.

¶ 109      In R. v. Golden 2009 MBCA 107, the sentencing judge imposed consecutive sentences for two offences, internet luring and making child pornography, of 12 months and 18 months respectively, for a total of 30 months. The Court of Appeal found the sentence offended the totality principle and imposed concurrent sentences of 18 months. Of note, the Court of Appeal chose not to impose a conditional sentence order as requested by the offender. Although he had no record, good prospects, and there was no suggestion he posed a danger to the community, the Court of Appeal found that denunciation and general deterrence could not be achieved by a conditional sentence order.

¶ 110      R. v. Taylor (2010 MBCA 103) is the most recent statement by the Manitoba Court of Appeal regarding totality. When a judge imposes consecutive sentences, the judge is to take a "last look" at the total sentence to ensure it is not unduly long or harsh. When a judge imposes concurrent sentences, the judge is to determine a fit period of imprisonment for the one set of offences.

Conclusion and Decision

¶ 111      Mr. James' victims are multiple. His offences spanned a long time. There were many, many incidents. His behaviour was predatory and deliberately orchestrated to make the victims totally dependent on him. The offences were egregious. He was in a significant position of trust. He was not just the victims' coach. He was essentially their guardian. There was the extra element of his ensuring compliance and silence of his victims by controlling that which his victims valued most - the chance at a career in professional hockey. His victims have suffered significant and lasting impact. The moral culpability of Mr. James is high.

¶ 112      Mr. James has not re-offended. He has rehabilitated by adjusting his behaviour, given his sexual preferences.

¶ 113      At this stage, and for this sentence, rehabilitation and specific deterrence are not the main factors to address. Rather, denunciation and general deterrence are key.

¶ 114      In the end the Court comes to the following conclusions:

¶ 115      The case of Graham James is one of those cases.

C. CARLSON PROV. CT. J.

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