R. v. James
Her Majesty the Queen and
Graham Michael James
 M.J. No. 89
2012 MBPC 31
Manitoba Provincial Court
C. Carlson Prov. Ct. J.
March 20, 2012.
Colleen A. McDuff, for the Crown.
Evan J. Roitenberg, for the Accused.
C. CARLSON PROV. CT. J.:
On December 7, 2011, Mr. Graham James entered
guilty pleas to two offences.
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
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.
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.
The issue for the Court is to determine the
appropriate sentence to be imposed on Mr. James for these two
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
The unique nature of this case
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.
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.
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.
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
Approach to be used by the Court
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
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,  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.
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
Positions on Sentence
There is not a joint recommendation as to
The maximum sentence available to the Court to
impose is ten years imprisonment for each offence. There is no
mandatory minimum sentence.
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
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
Circumstances of the offences
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
The sexual assaults on Mr. Fleury
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.
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.
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
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
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.
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
Mr. James persisted in this behaviour, twice a
week, until about May, 1984. Mr. Fleury estimates there were
about 80 assaults of this type.
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.
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.
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.
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.
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.
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
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.
Just to put this in context, the assaults on Mr.
Holt started several years after Mr. James' assaults on Mr.
Fleury had stopped.
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.
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.
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
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.
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".
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.
The assaults stopped during the 1993/1994 season
when Mr. Holt left the Swift Current Broncos.
Positions on the facts
The Crown says that there were hundreds of sexual
assaults on each of the two victims.
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.
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.
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.
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
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
Circumstances of the offender
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.
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.
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.
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
In 2007, Mr. James applied for and was granted a
pardon for the offences he was sentenced for in 1997.
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.
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.
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
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.
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.
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.
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.
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
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.
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.
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.
Dr. H.V.G. concludes as follows:
"Experience with the law and therapy helped him to accept
accountability and responsibility and do away with his
distorted thinking about these relationships. He candidly
recognizes that his hebephilic desires still exist but he
learned to "compensate" by turning to appropriate
"youthful" adults. The years that have passed without
repeat offenses are evidence that his therapies have
taken root with him......his dangerousity or risk of
recidivism, overall, is low to medium...the reference to
"medium" is associated with Mr. James' past offences."
Dr. P.C. opines that Mr. James has, secondary to
hebephilia, the associated sexual deviance of partialism, or a
In terms of risk, Dr. P.C. says that "the most
reliable predictor of future behaviour is past history".
Dr. P.C.'s opinion is:
"Although there has been no further offending on the part
of Mr. James since the 1990s, Mr. James will always pose
a risk to adolescent boys because of this deeply
engrained erotic preference. The Static-99R places him in
a moderate-high risk to re-offend."
He goes on to say that :
"Sexual deviancies, or paraphilic interests, are chronic
and life-long; therefore treatment efforts will not be
short term. The presence of sexual deviancy is the
critical factor when considering Mr. James' risk for
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
Purpose and Principles of Sentencing
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.
Section 718 of the Criminal Code provides
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
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 acknowledgment of the harm done to victims and
to the community.
Other sentencing principles that the Criminal
Code mandates the Court to specifically consider include
A sentence must be proportionate to the gravity of
the offence and the degree of responsibility of the
offender (s. 718.1). Here the offences, when taken
in the context of the long period of time over which
they were perpetrated, and the repeated nature of
them, are very grave. Mr. James bears full
responsibility for the totality of the circumstances
of the offences.
The Court must take into account aggravating or
mitigating circumstances relating to the offences or
the offender (s. 718.2). There are certain facts
that s. 718.2 specifically mandates be considered as
The principle of "totality" must be considered.
Specifically, where consecutive sentences are
imposed, the combined sentence should not be unduly
long or harsh (s. 718.2(c)).
The nature of the specific offence will often
mandate which of the objectives of sentencing should be of
paramount consideration on sentencing.
It is well established that in sexual assaults
involving children, the objectives of denunciation and
deterrence are to be given paramount consideration
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
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
The Supreme Court of Canada set out, in the case
of R. v. Proulx,  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.
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
The circumstances of the offences and of the
offender have already been described.
Mitigating and aggravating factors
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:
The guilty pleas are an acceptance by Mr. James of
his responsibility for the offences.
Mr. James has expressed remorse and apologized to
the victims Mr. Holt and Mr. Fleury, and to the
broader hockey community. The statement he read in
Court contained a recognition of the fact he abused
the trust of his victims.
He has expressed insight about his actions and their
effects, gained during his therapy sessions while
institutionalized after the 1997 convictions.
The guilty pleas have saved the victims having to
testify and have guaranteed convictions.
The last of these offences occurred 18 years ago.
Since he was released from custody on the 1997
convictions, over a decade ago, he has not been
convicted of any criminal offences.
Other than the two convictions from 1997 for
repeated sexual assault, the one conviction from
1998 for indecent assault, and the convictions for
these offences against Mr. Fleury and Mr. Holt, Mr.
James has no criminal record.
He did intensive sex offender therapy sessions while
in custody, and voluntarily delayed his early parole
in order to complete those sessions.
He successfully completed his parole with no
It appears, from the fact there is no reported
re-offending, that Mr. James has learned to manage
his risk in the community.
When he was in custody and asked if there were other
victims of his abuse, he said there were. When asked
specifically about Mr. Fleury, he did not deny it.
When he became aware that there were charges pending
in or about 2010, he contacted his lawyer and made
arrangements to return to Canada and turn himself in
to police, knowing he would be taken into custody.
He had been living and working in Mexico. He could
have stayed in Mexico and fought extradition. This
would have at best, delayed the proceedings, and at
worst, entirely avoided their resolution. Although
he could have tried to avoid dealing with the
charges, he has dealt with them.
Mr. James has been on judicial interim release since
December, 2010 and there have been no reported
breaches of his release order.
He has maintained regular, full time employment and
that employment remains available to him. A letter
from his employer confirmed he is a valued employee.
He has a number of supports in the community, as
reflected by the letters of support filed with the
Court by persons who are aware of his offences.
Mr. James has experienced an extreme degree of
public humiliation. Indeed Mr. James' career and
reputation have been ruined. He is, of course, the
author of his own misfortune. But, while publicity
and stigma are ordinary incidents of the criminal
justice system, and are not always cause for
mitigation of sentence (R. v. Deck, 2006 ABCA
92), the fact that the intense media scrutiny of Mr.
James has lasted for such a prolonged period of
time, and has been relentless, is a factor to
consider. Public humiliation, beyond what is
ordinarily incidental, may be considered in
mitigation (R. v. Heatherington, 2005 ABCA
393) and may provide a degree of denunciation and
deterrence (R. v. Bunn,  1 S.C.R. 183).
In this case, some mitigation is warranted.
Mr. James spent 5 weeks in custody on the current
charges before he was granted judicial interim
There are many aggravating factors here:
There was more than one victim.
The offences were perpetrated on persons under 18
years of age. Mr. Fleury was under 18 the entire
time. Mr. Holt was under 18 for a portion of the
time. This is a statutorily aggravating factor (s.
718.2(a)(ii.1) Criminal Code).
Mr. James, in committing the offences, abused a
position of trust and authority in relation to the
victims. This is a statutorily aggravating factor
(s. 718.2 (a)(iii) of the Criminal Code). Mr.
James claims that he did not realize he was abusing
trust at the time he was offending. The expert
reports say that this was a cognitive distortion.
The fact he may not have realized this was the case
does not change the fact that he did, in fact, abuse
his position of trust or authority.
Mr. James used manipulation and there was
pre-meditated planning in order to facilitate the
assaults. The control Mr. James exerted over the
victims left them with no option but to comply with
the assaults and to not disclose what had happened.
The nature of the assaults, that is, the actual acts
committed, were degrading and humiliating to these
The sexual assaults were repeated and there were
multiple sexual assaults on each victim.
The assaults were perpetrated over periods of years.
Mr. James has three other convictions for sexual
offences against teenagers. The two 1997 convictions
stem from offences that are so similar to these
ones, that they establish a predatory pattern of
Mr. James was sexually assaulting more than one
victim at the same period of time. During some of
the time that Mr. James was assaulting Mr. Kennedy,
he was also assaulting Mr. Fleury, and then Mr.
Holt. During some of the time that Mr. James was
assaulting Mr. Holt, he was also assaulting the
victim whose name remains protected by the
Mr. James' actions have had a significant, long
term, and devastating impact on the victims. Mr.
Holt and Mr. Fleury both prepared victim impact
statements. Section 722(1) of the Criminal
Code mandates that the Court shall consider
victim impact statements. Those statements speak for
Part of what Mr. Fleury said in his statement is as
"I was just a kid. A child. I was completely
under Graham James's control. And I was scared.
I did not have the emotional skills, the
knowledge, or the ability to stop the assaults
or change my circumstances. I felt lost, alone,
and helpless. And those feelings did not stop
after I was able to get away from Mr. James; I
continued to feel that way for 20 plus years
afterwards. I descended into years of drug
addiction, alcoholism, and addictions to sex,
gambling, rage. My loved ones, including my
beloved children, spiralled down with me. The
pain was all encompassing. And no matter how
many NHL games I won, or money I made, or fame
I gained could dull the pain of having been
sexually abused by Graham James. His sickness
changed my life, changed the lives of everyone
who was close to me, and caused more pain that
can be measured."
Mr. Holt's victim impact statement included the
"All of the relationships in my life have been
directly affected by Graham's actions....
The dreams & goals I had as a young man were
replaced with a negative self image in the
waking hours, only to be bombarded with
nightmares when I slept ...
My fear & paranoia for my own safety resulted
in a transient lifestyle; one where I was
connected to no one. I was always on the move,
scared & alone, trying to stay one step ahead
of the monster that never left my mind or my
I lost my career in the NHL & lost countless
jobs after that...
...I chose...to drown my pain in substance
abuse and self hatred...
...what that man did to me and many others is
the cruellest form of abuse inflicted on me at
a vulnerable age between boyhood and becoming a
man. It stopped my life in its tracks..."
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
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,  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.
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.
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.
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.
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.
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
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).
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,
 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
"...the lapse of time does not render inapplicable the
principle of general deterrence or the community's need
for denunciation of the conduct. Nor does the fact that
the last sentencing occurred in 1994 alter that
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
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
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.
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.
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
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:
"We would not limit the subcategory to cases in which the
victim is a young child or there are repeated acts of
sexual abuse. Those limits are inconsistent with the
reasons for recognizing the category. Those reasons rest
with the position of trust occupied by the abuser in
relationship to the child, the child's extreme
vulnerability, and the real probability that the child
will suffer one or more of the long-terms consequences
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
The case of R. v. R. (A.),  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:
"Nonetheless, where the delay in the reporting of the
offence has not resulted from threats made by the
offender, or from other attempts to suppress a complaint,
the offender may be entitled to a somewhat reduced
sentence if he has led an exemplary life during the
intervening years and demonstrates genuine remorse. Such
circumstances would obviate the need for individual
deterrence and time for rehabilitation." (paragraph 34)
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.
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
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.
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:
"This court has repeatedly stated that a conditional
sentence should rarely be imposed in cases of sexual
touching of children by adults, particularly where, as
here, the sexual violation is by a person in a position
of trust." (paragraphs 2 and 3)
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.
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:
the passage of time between the offending and the
date of decision is relatively important so as to
justify a finding that the absence of intervening
offending represents a firm resolve to act
responsibly; and, more commonly,
the offender has achieved positive steps towards
self-rehabilitation, quite apart from being
crime-free, in the intervening period and that it
would be detrimental to the offender's immediate
reformation and, it stands to reason, the long -term
well being of the community, to select imprisonment
at that late date."
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
The principle of totality requires consideration
in determining a sentence for Mr. James.
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:
"In the context of consecutive sentences, this general
principle of proportionality expresses itself through the
more particular form of the "totality principle". The
totality principle, in short, requires a sentencing judge
who orders an offender to serve consecutive sentences for
multiple offences to ensure that the cumulative sentence
rendered does not exceed the overall culpability of the
offender." (paragraph 42)
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.
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
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.
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
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.
Mr. James has not re-offended. He has
rehabilitated by adjusting his behaviour, given his sexual
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.
In the end the Court comes to the following
These offences were "major sexual assaults"
perpetrated on teenage boys by a person in a
position of trust. As such, the "starting point" of
four to five years imprisonment contemplated by the
Manitoba Court of Appeal in R. v. D.
(M.F.), supra, is applicable.
The unique factors of this case, including all the
mitigating and aggravating factors, have to be
balanced relative to that starting point sentence.
Totality is important here. If all four offences had
been before the Court in 1997, it is likely a
concurrent sentence on all offences would have been
imposed for all offences, given the similarities of
Mr. James' offending toward all four victims. But,
given that there were four offences instead of two,
the sentence would have been greater than three and
a half years. In all the circumstances of that time,
the Court is of the view that an appropriate total
sentence in 1997, for the four offences, would have
one equivalent to, or about, six years of
It is impossible to ignore the passage of time in
this case. It is a fact that the timing of the
disclosure of these offences has meant that Mr.
James has had the opportunity to rehabilitate. Since
one of the objectives of sentencing stated in the
Criminal Code is to assist an offender with
rehabilitation, the fact that, by all accounts,
rehabilitation has been successful, must be given
some credit in mitigation. Mr. James, since being
sentenced in 1997, has done everything his sentence
has asked of him. He has rehabilitated, not
offended, become a productive member of the
community, came back to face these offences and
taken responsibility for them. Sending Mr. James to
prison is not necessary for his personal
rehabilitation or own deterrence.
But, the seriousness of the offences, and the need
to address general deterrence and denunciation, do
require a further jail sentence. The lapse of time,
even with demonstrated rehabilitation, does not make
inapplicable the principles of general deterrence
Recognizing that Mr. James has served a sentence of
three and a half years, relative to what the Court
has assessed would have been, in 1997, a sentence at
or close to six years, giving him credit for his
rehabilitation, and also taking into account the
five weeks he spent in custody on these matters
before being released on bail, the Court has
determined that a sentence of two years imprisonment
going forward, on each of the two offences, is
Giving recognition to the principle of totality, so
as to avoid what would be a crushing sentence, the
sentences for these offences, which would, but for
the principle of totality, otherwise be consecutive,
will be concurrent to each other.
The two year sentence is a penitentiary sentence. It
acknowledges the seriousness of Mr. James' offences.
It means sending back to jail someone who has not
re-offended in the last 15 years and has done all
society has required of him during that time.
Given the length of the sentence, a conditional
sentence order is not available for consideration.
Even had the Court imposed a sentence of less than
two years, a conditional sentence order is not
appropriate. Chief Justice Lamer, for the Supreme
Court of Canada in the case of R. v. Proulx ,
2000 SCC 5, stated, at paragraph 106, that:
"...there may be certain circumstances in which
the need for denunciation is so pressing that
incarceration will be the only suitable way in
which to express society's condemnation of the
The case of Graham James is one of those cases.
C. CARLSON PROV. CT. J.