Reasons for Judgment: Sentencing [George Ansel Smith]

Share Button

IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR TRIAL DIVISION (GENERAL)

Citation: R. v. Smith, 2013 NLTD(G) 43

Date: 20130314

Docket: 201204G0048

BETWEEN:

                   her majesty the queen

AND:

                   george ansel smith

Docket: 201204G0195

BETWEEN:

                   her majesty the queen

AND:

                   george ansel smith

Docket: 201304G0024

 

BETWEEN:

                   her majesty the queen

AND:

                   george ansel smith

 

Restriction on Publication: The proceedings in this case are subject to an Order made under s. 486.4(1)(a)(i) of the Criminal Code that any information that could identify a complainant or a witness shall not be published in any document or broadcast or transmitted in any way.

___________________________________________________________________

 

Before: The Honourable Mr. Justice William H. Goodridge

___________________________________________________________________

Place of Hearing:                             Corner Brook, Newfoundland and Labrador

Date of Sentencing Hearing:           February 27, 2013

Summary:          

The offender was a Roman Catholic priest serving various rural communities in western Newfoundland. He pled guilty to 41 counts involving indecent assaults, sexual assaults and assaults against male children. The crimes were committed over a 20 year period beginning in 1969. The Court entered convictions on 38 of the counts and a stay was ordered on the remaining three. He was sentenced to 11 years in jail, less time served.

Appearances:

Trina Simms                            Counsel for Her Majesty the Queen

Thomas Williams, QC             Counsel for George Smith

 

Authorities Cited:

 

CASES CONSIDERED: R. v. Atkins (1988), 69 Nfld. & P.E.I.R. 99,  4 W.C.B. (2d) 348 (Nfld. C.A.); R. v. J. (B.W.), (1993) 109 Nfld. & P.E.I.R. 80, 20 W.C.B. (2d) 373 (Nfld. C.A.); R. v. English (1994), 122 Nfld. & P.E.I.R. 15, 24 W.C.B. (2d) 353 (Nfld. C.A.); R. v. J. S. S. (1995), 87 O.A.C. 158, 29 W.C.B. (2d) 310; R. v. W.N., 1995 ABCA 19; R. v. Plint, [1995] B.C.J. No. 3060 (B.C. S.C.); R. v. Lasik (1999) 180 Nfld. & P.E.I.R. 125, 43 W.C.B. (2d) 236 (Nfld. S.C.(T.D.)); R. v. Cloutier, 2011 ONCA 484; R. v. Lavoie, 2012 QCCA 2112; R. v. Rowsell (1992), 102 Nfld. & P.E.I.R. 302, 17 W.C.B. (2d) 141 (Nfld. C.A.); R. v. Ralph (1993), 105 Nfld. & P.E.I.R. 220, 19 W.C.B. (2d) 241 (Nfld. C.A.); R. v. C. (I.), 39 B.C.A.C. 227; R. v. Barry (1998), 167 Nfld. & P.E.I.R. 65, 40 W.C.B. (2d) 129 (Nfld. S.C. (T.D.)); R. v. Douglas (1994), 40 B.C.A.C. 28, 22 W.C.B. (2d) 386; R. v. Sylvestre, 2006 ONCJ 412; R. v. Crocker (1991), 93 Nfld. & P.E.I.R. 222, 292 A.P.R. 222; R. v. Hutchings, 2012 NLCA 2.

 

STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46, as am.

 

REASONS FOR JUDGMENT

SENTENCING

 

Goodridge, J.:

INTRODUCTION

[1]             George Smith, age 75, retired Roman Catholic priest, has pled guilty to multiple offences involving sexual abuse of young boys. The abuse began in 1969 when the offender was only 31 years old. It continued for a 20 year period while the offender was serving as a parish priest in western Newfoundland. The agreed facts reveal the disturbing details of a predator who violated his position of trust within the parish community and, in fact, used that position of trust to groom young male victims. He sexually assaulted his victims in many different ways and in many different communities over those 20 years.

[2]             In total there are 13 victims who have come forward with complaints. For 11 of these 13 victims there were multiple sexual assaults. For six of the victims the assaults continued over a period of years. In most cases the abuse began when the targeted victim was 12 or 13 years old. One of the victims was only eight years old. All victims were from Catholic families; five were altar boys; one was a newspaper carrier boy; and one performed odd jobs around the parish church property.

[3]             The offender’s modus operendi was to win friendship from his chosen victim through gifts and praise. The gifts included money, alcohol, cigarettes, cigars, ice cream, soft drinks, pornographic videos (viewed at the offender’s home), road trips, fishing trips and use of a snowmobile. Once trust and friendship were established, the offender would invite the victim to his home for a sleep over. Ten of the thirteen victims were given alcohol immediately preceding the first incident of sexual abuse. Nine of the victims were asleep or passed out and awoke to discover their first victimization by sexual assault in progress. The criminal acts committed by the offender included kissing, body rubbing, genital fondling, masturbation, fellatio, anal intercourse, attempted anal intercourse, simulated intercourse between the legs and more.

BILL OF INDICTMENT

[4]             The charges for which convictions have been entered include 23 counts for indecent assault, 7 counts for sexual assault, and 8 counts of assault. There are three separate Bills of Indictment which collectively detail the following 41 charges: [1]

201204G0048

Count No. 1

on or between January 1, 1971 and July 14, 1971, at or near Stephenville, in the Province of Newfoundland and Labrador, did indecently assault another male to wit:  P.H., contrary to Section 148 of the Criminal Code, R.S.C. 1953-54, c. 51

Count No. 3

on or between January 1, 1971 and July 14, 1971, at or near Stephenville, in the Province of Newfoundland and Labrador, did commit an assault on P.H., contrary to Section 232(1) of the Criminal Code, R.S.C. 1953-54, c. 51

Count No. 5

on or between July 15, 1971 and December 1, 1973, at or near Stephenville, in the Province of Newfoundland and Labrador, did indecently assault another male to wit:  P.H., contrary to Section 156 of the Criminal Code, R.S.C. 1970, c. C-34

Count No. 6

on or between January 1, 1971 and July 14, 1971, at or near Corner Brook, in the Province of Newfoundland and Labrador, did indecently assault another male to wit:  P.H., contrary to Section 148 of the Criminal Code, R.S.C. 1953-54, c. 51

Count No. 8

on or between January 1, 1971 and July 14, 1971, at or near Corner Brook, in the Province of Newfoundland and Labrador, did commit an assault on P.H., contrary to Section 232(1) of the Criminal Code, R.S.C. 1953-54, c. 51

Count No. 10

on or between July 15, 1971 and December 1, 1973, at or near Corner Brook, in the Province of Newfoundland and Labrador, did indecently assault another male to wit:  P.H., contrary to Section 156 of the Criminal Code, R.S.C. 1970, c. C-34

Count No. 11

on or between January 1, 1971 and July 14, 1971, at or near Port Saunders, in the Province of Newfoundland and Labrador, did indecently assault another male to wit:  P.H., contrary to Section 148 of the Criminal Code, R.S.C. 1953-54, c. 51

Count No. 13

on or between January 1, 1971 and July 14, 1971, at or near Port Saunders, in the Province of Newfoundland and Labrador, did commit an assault on P.H., contrary to Section 232(1) of the Criminal Code, R.S.C. 1953-54, c. 51

Count No. 15

on or between July 15, 1971 and December 1, 1973, at or near Port Saunders, in the Province of Newfoundland and Labrador, did indecently assault another male to wit:  P.H., contrary to Section 156 of the Criminal Code, R.S.C. 1970, c. C-34

Count No. 16

on or between January 1, 1971 and July 14, 1971, at or near Port aux Basque, in the Province of Newfoundland and Labrador, did indecently assault another male to wit:  P.H., contrary to Section 148 of the Criminal Code, R.S.C. 1953-54, c. 51

Count No. 18

on or between January 1, 1971 and July 14, 1971, at or near Port aux Basque, in the Province of Newfoundland and Labrador, did commit an assault on P.H., contrary to Section 232(1) of the Criminal Code, R.S.C. 1953-54, c. 51

Count No. 20

on or between July 15, 1971 and December 1, 1973, at or near Port aux Basque, in the Province of Newfoundland and Labrador, did indecently assault another male to wit:  P.H., contrary to Section 156 of the Criminal Code, R.S.C. 1970, c. C-34.

Count No. 22

on or between July 22, 1976 and September 30, 1976, at or near St. Fintan’s, in the Province of Newfoundland and Labrador, did indecently assault another male to wit:  P.H., contrary to Section 156 of the Criminal Code, R.S.C. 1970, c. C-34

Count No. 24

on or between December 1, 1973 and June 30, 1974, at or near Stephenville, in the Province of Newfoundland and Labrador, did indecently assault another male to wit: D.S., contrary to Section 156 of the Criminal Code, R.S.C. 1970, c. C-34

Count No. 25

on or between August 10, 1969 and July 14, 1971, at or near Port Saunders, in the Province of Newfoundland and Labrador, did indecently assault another male to wit: R.P., contrary to Section 148 of the Criminal Code, R.S.C. 1953-54, c. 51

Count No. 27

on or between August 10, 1969 and July 14, 1971, at or near Port Saunders, in the Province of Newfoundland and Labrador, did commit an assault on R.P., contrary to Section 232(1) of the Criminal Code, R.S.C. 1953-54, c. 51

Count No. 29

on or between July 15, 1971 and December 15, 1971, at or near Port Saunders, in the Province of Newfoundland and Labrador, did indecently assault another male to wit: R.P., contrary to Section 156 of the Criminal Code, R.S.C. 1970, c. C-34

Count No. 30

on or between August 10, 1969 and July 14, 1971, at or near Corner Brook, in the Province of Newfoundland and Labrador, did indecently assault another male to wit: R.P., contrary to Section 148 of the Criminal Code, R.S.C. 1953-54, c. 51

Count No. 32

on or between August 10, 1969 and July 14, 1971, at or near Corner Brook, in the Province of Newfoundland and Labrador, did commit an assault on R.P., contrary to Section 232(1) of the Criminal Code, R.S.C. 1953-54, c. 51

Count No. 34

on or between July 15, 1971 and December 15, 1971, at or near Corner Brook, in the Province of Newfoundland and Labrador, did indecently assault another male to wit: R.P., contrary to Section 156 of the Criminal Code, R.S.C. 1970, c. C-34

Count No. 35

on or between August 10, 1969 and July 14, 1971, at or near Stephenville, in the Province of Newfoundland and Labrador, did indecently assault another male to wit: R.P., contrary to Section 148 of the Criminal Code, R.S.C. 1953-54, c. 51

Count No. 37

on or between August 10, 1969 and July 14, 1971, at or near Stephenville, in the Province of Newfoundland and Labrador, did commit an assault on R.P., contrary to Section 232(1) of the Criminal Code, R.S.C. 1953-54, c. 51

Count No. 39

on or between July 15, 1971 and December 15, 1971, at or near Stephenville, in the Province of Newfoundland and Labrador, did indecently assault another male to wit: R.P., contrary to Section 156 of the Criminal Code, R.S.C. 1970, c. C-34

Count No. 41

on or between September 2, 1976 and June 30, 1977, at or near St. Fintan’s, in the Province of Newfoundland and Labrador, did indecently assault another male to wit: H.P.G., contrary to Section 156 of the Criminal Code, R.S.C. 1970, c. C-34

Count No. 43

on or between September 1, 1977 and May 31, 1978, at or near St. Fintan’s, in the Province of Newfoundland and Labrador, did indecently assault another male to wit: K.B., contrary to Section 156 of the Criminal Code, R.S.C. 1970, c. C-34

Count No. 45

on or between July 22, 1976 and May 31, 1979, at or near St. Fintan’s, in the Province of Newfoundland and Labrador, did indecently assault another male to wit: D.B., contrary to Section 156 of the Criminal Code, R.S.C. 1970, c. C-34

Count No. 47

on or between July 22, 1976 and December 26, 1979, at or near St. Fintan’s, in the Province of Newfoundland and Labrador, did indecently assault another male to wit: W.B., contrary to Section 156 of the Criminal Code, R.S.C. 1970, c. C-34

Count No. 49

on or between January 1, 1980 and May 31, 1980, at or near St. Fintan’s, in the Province of Newfoundland and Labrador, did indecently assault another male to wit: S.B., contrary to Section 156 of the Criminal Code, R.S.C. 1970, c. C-34

Count No. 51

on or between July 18, 1984 and December 31, 1984, at or near Cape St. George, in the Province of Newfoundland and Labrador, did sexually assault Ll.J., contrary to Section 246.1 of the Criminal Code, R.S.C. 1970, c. C-34

Count No. 53

on or between January 1, 1985 and September 20, 1986, at or near Cape St. George, in the Province of Newfoundland and Labrador, did sexually assault Ll.J., contrary to Section 271 of the Criminal Code, R.S.C. 1985, c. C-46

Count No. 55

on or between September 20, 1986 and December 31, 1987, at or near Deer Lake, in the Province of Newfoundland and Labrador, did sexually assault Ll.J., contrary to Section 271 of the Criminal Code, R.S.C. 1985, c. C-46

Count No. 57

on or between July 18, 1984 and December 31, 1984, at or near Cape St. George, in the Province of Newfoundland and Labrador, did sexually assault L.J., contrary to Section 246.1 of the Criminal Code, R.S.C. 1970, c. C-34

Count No. 59

on or between January 1, 1985 and September 20, 1987, at or near Cape St. George, in the Province of Newfoundland and Labrador, did sexually assault L.J., contrary to Section 271 of the Criminal Code, R.S.C. 1985, c. C-46

Count No. 61

on or between September 20, 1986 and December 31, 1989, at or near Deer Lake, in the Province of Newfoundland and Labrador, did sexually assault L.J., contrary to Section 271 of the Criminal Code, R.S.C. 1985, c. C-46

Count No. 62

on or between July 1, 1988 and July 31, 1989, at or near Deer Lake, in the Province of Newfoundland and Labrador, did sexually assault J.E., contrary to Section 271 of the Criminal Code, R.S.C. 1985, c. C-46

201204G0195

Count No. 1

between the 1st day of March A.D., 1974, and the 30th day of April A.D., 1974, at or near Joggins, Nova Scotia, being a male person, indecently assault D.S., a male person, contrary to section 156 of the Criminal Code

Count No. 3

between the 1st day of May A.D., 1968 and the 31st day of August 1968, at or near Joggins, Nova Scotia, did being a male person, indecently assault R.P., a male person, contrary to section 148 of the Criminal Code

Count No. 5

on or between February 28, 1977 and June 31, 1977, at or near St. Fintan’s, in the Province of Newfoundland and Labrador, did indecently assault another male to wit: G.S., contrary to Section 156 of the Criminal Code, R.S.C. 1970, c. C-34

Count No. 6

on or between January 1, 1971 and January 1, 1976, at or near Corner Brook, in the Province of Newfoundland and Labrador, did indecently assault another male to wit: R.L., contrary to Section 148 of the Criminal Code, R.S.C. 1953-54, c. 51

Count No. 8

on or between January 1, 1971 and January 1, 1976, at or near Corner Brook, in the Province of Newfoundland and Labrador, did commit an assault on R.L., contrary to Section 232(1) of the Criminal Code, R.S.C. 1953-54, c. 51

201304G0024

Count No. 1

between the 4th day of April, A.D., 1974 and the 21st day of April, A.D., 1974, at or near the City of Moncton, in the County of Westmorland and Province of New Brunswick, did indecently assault D.S., a male person, committing thereby an indictable offence, contrary to and in violation of Section 156 of the Criminal Code

ISSUE

[5]             The sole issue before the Court is the determination of a sentence for these crimes.

THE FACTS

[6]             The Agreed Statement of Facts discloses the following:

P.H.:

P.H. first met George Smith in Stephenville, NL, while H. was an altar boy and Smith was the parish priest. H.’s mother worked at Smith’s residence.  He was 13 or 14 years old when he met Smith and recalls that Smith would play around with him, wrestling with him and giving him “whisker burns” on H.’s face by Smith rubbing his face against H’s. Later H. recalls that Smith would give him whisker burns on his stomach.  H. recalls that Smith would take him on fishing trips, and would be at the H. residence at times. H. recalls the first incident of sexual abuse was while Smith spent a night at H.’s residence. H. went to bed and awoke later in the night with Smith lying with his legs across H. and had his hand on H.’s genitals.  H. also recalls a fishing trip during which Smith stripped off his clothes while H. was present and got into the lake. H. walked a little further down the shore away from Smith and continued fishing.

The extensive sexual incidents began on an occasion when Smith asked H. to spend the night with him in the Stephenville Convent as it was summer time and all of the nuns were gone home. Smith asked H. to stay there with him so they could watch the Convent because it was empty. H. recalls that when he got to the Convent, Smith had a bottle of rum there for him, and had a bed made up on the floor.  That night Smith got H. into the bed, kissed him, and fondled and stroked his genitals.  H. recalls that this progressed to Smith turning H. over on to his stomach. Smith then placed Vaseline both on H.’s anus, and on his own penis. Smith penetrated H. anally with his penis and proceeded to have sexual intercourse with him. H. recalls that it hurt and it went on and on for a long time.

On the same evening Smith told H. that he had never done anything like this before, and that he loved him. Smith then got on top of H. and started kissing him on the mouth, and put his tongue in his mouth. Smith then started to perform oral sex on H. Smith continued it until H. ejaculated. H. believes that he was 13 or 14 years old when this happened.

H. recalls that, after the first incident, this happened repeatedly over the course of a number of years, until H. was roughly 16 years old. Smith would continually take H. to the empty Convent that summer, mostly on weekends. He recalls on the second incident that Smith fondled and masturbated H., then performed oral sex on him.  H. recalls that the oral sex was painful. H. recalls Smith kissing him on the mouth, then turning H. over again onto his stomach and placing Vaseline on H.’s anus and his own penis. Smith anally penetrated H. again, and began sexual intercourse with him. This time when H. complained that it hurt, Smith stopped and then placed his penis between H.’s legs, and moved back and forth until Smith ejaculated.

H. recalls another time when his sister married in Codroy Valley. H. attended the wedding with his family and Smith was also there. At the wedding Smith asked H. to go back to Stephenville with him. H. declined, stating that he wanted to stay at the wedding with his family. Smith grabbed H. by the arm and said, “No, come with me.” H. ended up going to Smith’s residence with him and Smith provided him with alcohol, which H. drank, until he became intoxicated. On this occasion Smith fondled and masturbated H.[,] performed oral sex on him, and rubbed his penis between H.’s legs until Smith ejaculated. Smith told H. again that he loved him, that he was the only person he ever did this with, that it was their secret and that H. shouldn’t tell anybody.

H. recalls that there were incidents when Smith would request oral sex from H.  H. ended up performing oral sex on Smith on a couple of occasions because Smith forced H.’s head near his penis and told him to try it. H. recalls Smith being forceful in this regard on at least one occasion.

H. recalls another occasion during which Smith took H. on a trip to Nova Scotia to visit Smith’s mother’s home. While H. does not recall anything sexual happening in Nova Scotia, he recalls that Smith booked them a private cabin for both crossing to Nova Scotia from Port Aux Basques, and returning from Nova Scotia to Port Aux Basques. H. recalls that on both crossing[s] while in the private cabin, Smith followed the same pattern of fondling and masturbating H., performing oral sex on him until H. ejaculated, and then Smith placing his penis between H.’s legs and rubbing until Smith ejaculated.

H. recalls another incident during which Smith took H. to Port Saunders with him for a weekend where they stayed at the Priest’s residence in Port Saunders, NL. In Port Saunders H. went hunting with boys he remembers to be “The P.” boys, and later went to a dance with them. After the dance the P. boys went home and H. returned to the Priest’s residence where he was staying with Smith. H. went to bed in a separate room but at some point during the night Smith came into his room and got in bed with him. The sexual contact followed the same pattern as before, in that Smith fondled H.’s genitals, performed oral sex on H., and then Smith ejaculated by rubbing his penis either between H.’s leg[s], or by performing anal intercourse on him.

H. also recalls that this happened on one occasion in Corner Brook, NL, when H. travelled to Corner Brook with Smith to visit a friend of Smith’s. Smith and his friend drank alcohol and chatted throughout the night, and also allowed H. to drink alcohol.  H. went to bed ahead of Smith, in a separate room.  When Smith and his friend went to bed Smith came and got into bed with H. Again the sexual abuse followed the same pattern as before.

Later, Smith had relocated to St. Fintan’s, NL, and asked H. to help him with moving. H. did not want to go as he felt he knew that something sexual would happen, but H. recalls that Smith convinced him to go. At his residence in St. Fintan’s, Smith had set up a video screen and played pornographic movies.  He provided H. with alcohol, which H. accepted because, again, he felt he knew what was going to happen and felt that alcohol would help him through it. Smith put on the pornographic videos. The first had a male and a female, and the second was male and male. After the videos Smith went to his room to change and came out wearing a bathrobe with nothing underneath.  Smith started sexual contact with H. on the couch and then both moved to the bedroom where sexual contact continued. H. was sick the next day from the effects of drinking alcohol.

Finally, H. recalls that anal penetration, wherein Smith would penetrate H. anally and perform sexual intercourse on him happened on more than two occasions, but he could not specify a number of times. H. also indicated that Smith ejaculated while he was penetrating H. H. describes all of this as happening in the early 1970’s.

In relation to these facts George Smith has pled guilty to counts 1, 3, 5, 6, 8, 10, 11, 13, 15, 16, 18, 20, and 22 on the Indictment.

D.S.:

D.S. recalls first meeting George Smith as part of the Catholic Church in Cape St. George where he lived. The first sexual encounter that occurred with Smith, he recalls, happened over Christmas in 1973. Smith would always give D.S. alcohol while he was at his home, and on the occasion over Christmas D.S. recalls that he had a lot of beer to drink and was feeling the effects of the alcohol. Smith suggested that D.S. stay the night and have a “sleepover” with him. D.S. complied thinking that he would be sleeping in one of the several bedrooms in the home. When it came time to go to bed Smith informed D.S. that D.S. would be sleeping in his bed with him. D.S. went on to sleep and was awoken later to Smith fondling D.S.’s genitals and masturbating him. D.S. pretended to be asleep and Smith continued to masturbate him until D.S. ejaculated.

D.S. recalls that during the following Easter holiday, Smith took him on a 5 to 6 day trip to Nova Scotia, New Brunswick, and the US. Smith and D.S. spent two nights at Smith’s family home in Nova Scotia. D.S. recalls that, while in Nova Scotia, Smith gave him alcohol and slept in the same bed with him. He recalls that this was the first time that Smith performed oral sex on him, and that he continued oral sex on D.S. until D.S. ejaculated. D.S. further recalls that, after this initial oral sex incident in Nova Scotia, Smith performed oral sex on him on subsequent occasions. D.S. has a specific memory of Smith always cleaning up the ejaculate. D.S. recalls that, after leaving Nova Scotia, he and Smith spent a night in New Brunswick where the same thing happened, and then a night or two in the US. All of these nights were spent in hotel rooms.

D.S. recalls that Smith was always very nice and friendly to him, and that he would let D.S. ride his ski-doo.

D.S. states that Smith never had D.S. touch him, it was always Smith touching D.S. He recalls an incident during which he was at Smith’s residence spending the night and was in Smith’s bed, asleep, when the resident maid came in and saw him there.  She woke him and told him to get up out of the bed. He was then sent to speak with a Father O’Quinn who asked him if anything unusual was happening, and D.S. denied that it was. He recalls that this was how the sexual touching with Smith ended.

In relation to these facts George Smith has pled guilty to count 24 on the Indictment, Count 1 on the 8 count Indictment, and count 1 on the one count Indictment.

R.P.:

R.P. was born and grew up in Port au Choix, Newfoundland and Labrador. He first met George Smith when he came to be the parish priest at the church at which P. was an alter boy, in Port Saunders, Newfoundland and Labrador. P. recalls this to be in 1969 and 1970. P.’s mother also worked directly with the Catholic church and with Smith, housekeeping at his residence. Very shortly after meeting Smith, he began to give P. gifts and taking him on trips, once to Nova Scotia, and on fishing trips. He believes he was around 11 years old when the sexual abuse started. P. recalls specifically a time at which Smith took him to Amherst, Nova Scotia and the two stayed with Smith’s mother. P. recalls that he was in a bed at the residence and, during the night, Smith got in bed with him and started kissing him. He recalls trying to fight Smith off, but was unsuccessful. He recalls Smith sticking his tongue in his mouth, and touching, stroking, and fondling his genitals. This was the first time that he recalls anything sexual happening.

At times both P. and his mother would stay at Smith’s residence, and at other time’s P.’s mother would not stay there, but would make P. stay there because Smith would tell her that he was afraid to be in the house alone.

P. recalls sexual incidents occurring roughly 20 to 30 times over a period of a few years. He recalls it would always occur in a bed, Smith would kiss him on the neck and on the mouth and French kiss him, he would play with his genitals, fondling and stroking him. P. recalls that if he resisted or said he didn’t want to do anything, Smith would get upset and remind him of the gifts he had given him and the trips he had taken him on. Smith would fondle and stroke P. then until he ejaculated, sometimes he would engage in oral sex on him. On occasions when P. would tell him he didn’t want to do this anymore (he recalls specifically stating, “No, please don’t”), Smith would tell him that if he didn’t do it, Smith would start “seeing” someone else.

P. recalls one specific incident when Smith came into the room naked and asked P. to approach him from behind, meaning Smith wanted P. to anally penetrate him. P. refused and Smith said, “Just try”. Smith then fondled P.’s penis until P. was erect, and tried manually himself to put P.’s penis in his anus. The attempt was not successful.

P. also recalls Smith taking P.’s hand and placing it on Smith’s penis, having P. masturbate him. He recalls Smith performing oral sex on him, then taking ejaculate in his hand and rubbing it over his own face.

In relation to the incidents regarding R.P., Smith has pled guilty to counts 25, 27, 29, 30, 32, 34, 35, 37, and 39 on the Indictment, and count 3 on the 8 count Indictment.

H.P.G.:

G. grew up in St. Fintan’s, NL, and recalls first meeting Smith when he became the Parish Priest at St. Fintan’s. G. was an alter boy and was around 12 or 13 years old when he first met Smith.  This would have been in 1973 to 1975.

G. recalls two occasions on which he stayed the night at Smith’s residence in St. Fintan’s. On the second occasion that he stayed at Smith’s residence, Smith gave him alcohol throughout the night. G. recalls that it was on a school night because he recalls feeling quite hungover from alcohol consumption at school the next day. He drank rum and beer, and would have drank upwards of 5 to 10 drinks. He recalls that Smith’s place was where he and the other alter boys would go to drink alcohol on a regular basis. He states he went to bed in Smith’s bed and woke in the dark with Smith’s hand on his genitals, fondling and stroking him. He is unable to provide details about the amount of time over which this occurred, but indicates that he either rolled over or simply pretended to be asleep. He did not ejaculate and the next thing he remembers is waking in the morning. This was the only incident that occurred between Smith and G. This would have been sometime in 1976 or 1977.

In relation to these facts George Smith has pled guilty to count 41 on the Indictment.

K.B.:

K.B. is brother to W.B., S.B., and D.B. and grew up in St. Fintan’s, NL in a devoutly Catholic family. He knew Smith as he was the Parish Priest at his church and because he was a friend of the family. K.B. recalls that in 1978 when K.B. was 13 years old Smith invited him to Smith’s residence for dinner and a sleepover. K.B. agreed and went over. They ate dinner and Smith then went to the living room to watch the news. Smith started a conversation with K.B. and advised him that he, Smith, led a very lonely lifestyle and often sought out the company of men. Smith told K.B. that it would be inappropriate for him to have relationships with women because he was a priest. Smith then brought K.B. some ice cream floating in Crème de Menthe. K.B. ate some but did not finish it. Smith then offered K.B. beer or rum and coke. K.B. accepted and had two drinks of rum and coke. At 10:30 Smith told K.B. it was time for bed and directed him toward Smith’s bedroom. Smith told K.B. that they would both sleep in his bed so that Smith would only have one bed to make up in the morning. Smith further told K.B. that he, Smith, usually slept in the nude for health reasons. Once they both got into bed, Smith lay over the top of K.B., chest to chest, and told him that he had to adjust the heat on the electric blanket. K.B. went to sleep but awoke later in the night with his underwear twisted around his hips and thighs so he straightened them out and pulled them up. Some time later, he awoke again feeling that his underwear was uncomfortable, and again he awoke to find that his underwear was twisted around his hips and thighs. At the same time K.B. felt Smith stroking K.B.’s penis with Smith’s thumb and forefinger, and felt Smith’s body close to his back. K.B. curled up into a fetal position and moved away from Smith to the far edge of the bed.  K.B. then lay awake scared for the rest of the night. Throughout the night K.B. felt Smith’s hand rub up onto his side on a couple more occasions, but each time K.B. would use his elbow to push Smith’s hand away, and again curl up and withdraw to the edge of the bed. K.B. recalls that Smith was not forceful with him, but rather Smith was opportunistic in attempting to touch him. In the morning both got out of bed and Smith advised K.B. that he would be working in another room throughout the day. This was the only incident that K.B. described.

In relation to these facts George Smith has pled guilty to count 43 on the Indictment.

D.B.:

D.B. recalls first meeting George Smith in or around 1974 to 1975 at St, (sic) Fintan’s, NL. Smith was the parish priest and was a family friend.  He would sometimes take meals with the B. family.  D.B. is a brother to S.B., W.B., and K.B. D.B.’s family was devout Catholics.

D.B. recalls two evenings during which he spent this night at Smith’s residence before anything sexual occurred.

Smith then offered D.B. to stay on another occasion, to which D.B. reluctantly complied. On that occasion Smith offered him alcohol. Smith stated to D.B., “It’s fine, have a little drink.  I won’t tell”. D.B. recalls having 2 to 4 glasses of wine. He went to sleep that night feeling the effects of the alcohol. Throughout the night he awoke to Smith having his hand down inside of D.B.’s underwear. D.B. asked Smith what he was doing and recalls that Smith answered that he was simply checking to see if D.B. had wet the bed because “sometimes boys do that”. All of these incidents, D.B. recalls, happened throughout the course of six months to a year. D.B. also recalls that, during this time, Smith would ask him to come around and do chores for him and Smith would always give him money when the chores were completed. D.B. also recalls that Smith would let him ride his snowmobile, and his ride-on snow blower.

On the next occasion it was winter and Smith again asked D.B. to spend the night. It was an extremely cold night and at bed time Smith told D.B. that he had an electric blanket on his bed and D.B. should come and see how warm it was. D.B. had never heard of an electric blanket before and was intrigued by it but he declined Smith’s offer, electing instead to sleep in the spare bedroom. D.B. woke up later throughout the night and found that he was extremely cold and that the bedroom he was in was freezing.  D.B. got out of bed and told Smith that he was freezing. Smith then invited D.B. to his own bed, again, to try the electric blanket. D.B. got into bed with Smith and went to sleep.

When D.B. awoke Smith was performing oral sex on him. D.B. immediately punched Smith in the eye and got out of bed. He recalls that on the following Sunday, Smith wore sunglasses at church. This was the last sexual incident that D.B. can recall involving Smith. D.B. recalls these incidents occurring when he was 13 or 14 years old, in 1976 to 1977.

In relation to these facts George Smith has pled guilty to count 45 on the Indictment.

W.B.:

W.B. is brother to S.B., K.B. and D.B. He recalls first meeting Smith when he was 10 to 11 years old and in grade 4. W.B. recalls that he would do work around the church for Smith and Smith would reward him with pop, ice cream, and cigarettes. Eventually Smith offered W.B. alcohol and allowed him to drink at Smith’s residence.

W.B. recalls the first sexual incident occurring when he spent the night at Smith’s house. W.B. was drinking and intoxicated. He went to bed in a spare bedroom and went to sleep. When he woke Smith was in bed with him, naked. W.B. asked Smith what he was doing and Smith replied that he was just laying down for a while.

W.B. recalls a second incident wherein he was drinking at Smith’s residence and became intoxicated. He recalls that he “passed out” in an arm chair and when he awoke his pants were undone and Smith was sitting near him. W.B. again asked Smith what he was doing to which Smith replied, “Nothing, don’t worry about it.” W.B. began to get agitated and nervous, but Smith calmed him down. W.B. told Smith that he did not want Smith to touch him to which Smith replied that if W.B. didn’t want to do anything, Smith would get “D. or K. to come down”. D. and K. were W.B.’s younger brothers. In the interest of protecting his siblings, W.B. allowed Smith to touch and fondle his genitals.

W.B. states that, after that point, Smith would drive around town and eventually find W.B., give him money for alcohol and tell him to come to his residence after he had been drinking. W.B. would drink, become intoxicated, and go to Smith’s residence. He recalls that Smith would lay on top of him and kiss him, and fondle and stroke his genitals. W.B. would often pretend to be asleep.

W.B. states that there were times that Smith would come to W.B.’s house looking for him, and that he would bring alcohol. Smith would take W.B. with him to run errands and allow W.B. to drink while he did so. He would then either take him back to Smith’s residence and repeat the same pattern of kissing, stroking and fondling him, or kiss and fondle him in the vehicle. W.B. recalls these incidents escalating to Smith taking W.B.’s hand and placing it on his own penis, to Smith performing oral sex on him, and asking W.B. to perform oral sex on Smith. W.B. recalls that he performed oral sex on Smith a couple of times. W.B. also recalls that there were times when Smith would place W.B. over onto his stomach, place his penis between his legs and rub it until Smith ejaculated.

W.B. recalls this happening numerous times over a span of three to five years, until he was between 13 and 15 years old. W.B. specifically recalls that every time he would say to Smith that he did not want to do anything, or ask Smith not to touch him, Smith always replied that if W.B. would not participate Smith would get one of his younger brothers to come over.

In relation to these facts George Smith has pled guilty to count 47 on the Indictment.

S.B.:

S.B. first met Smith when Smith came to the St. Fintan’s, NL, parish, where S.B. and his family were members. S.B. recalls this to have been around 1976-77.  At that time, S.B.’s older brothers spent a lot of time with Smith, and S.B. noted that Smith would give his brothers alcohol and cigarettes. In 1979, S.B.’s older brothers moved to Ontario. S.B.’s brothers are W.B., K.B., and D.B.

S.B. recalls the first night he spent at Smith’s residence to have been during a thunder and lightning storm. S.B.’s mother told him that Smith called S.B.’s residence and asked S.B.’s mother if one of her sons could come and spend the night at his house because he was afraid of the storm. S.B.’s mother made S.B. go to Smith’s residence. S.B. recalls Smith telling him to sleep in Smith’s bed, which he did. Smith told him that he had to sleep in his bed with him because he, Smith, was afraid of thunder and lightning. S.B. recalls waking with wet underwear and feeling pain in his penis.  S.B. recalls this to be around or near the Fall of 1979.

On another occasion, S.B. recalls spending the night at Smith’s residence and sleeping in Smith’s bed. He recalls Smith having given him beer that night. In bed, he felt Smith’s hand come around his waist and go down into his underwear. S.B. pulled away and turned over, but Smith continued to stroke S.B.’s penis and genitals until S.B. became erect. S.B. said he experienced pain in his penis. After Smith stopped touching S.B., he rolled away from S.B. in the bed and masturbated himself with S.B. still in the bed.

In relation to these facts George Smith has pled guilty to count 49 on the Indictment.

Ll.J.:

Ll.J. is the younger brother of L.J.. The J. family was very close to George Smith as the family was strongly Catholic and he was the Parish Priest in their community, Cape St. Georges (sic), NL.  Ll.J. was an alter boy at the church prior to Smith becoming a priest there, and he believes he first met Smith in 1983 when he was between 10 and 12 years old.  Smith befriended he and his brothers.

He recalls the first sexual incident with Smith occurred on an occasion when he was asked to sleep over at Smith’s residence. He was aware that, prior to this, his older brother, L., had also spent nights at Smith’s residence. The first sexual incident occurred on the first occasion that Ll.J. slept at Smith’s house. As it came time to go to bed, though there were several rooms, Smith directed Ll.J. to sleep in Smith’s bed with him as he did not want to trouble the maid to have to make up two beds the following morning. Once they were both in the bed and Ll.J. was sleeping, he was awoken to feel Smith’s hand begin to stroke his chest and stomach, and eventually fondle his genitals.  He stated that this continued for a while and then Smith performed fellatio on him. Ll.J. recalls that this continued until Ll.J. ejaculated. Ll.J. did not respond or say anything because he was scared and shocked. Ll.J. describes this type of incident, always in the same manner, occurring roughly ten different times while in Cape St. Georges (sic). He said that on each occasion Smith would perform oral sex on him until he ejaculated.  He states that on one occasion Smith took Ll.J.’s hand and tried to place it on Smith’s penis, but Ll.J. resisted and Smith did not attempt it again.

Ll.J. also recalls that, eventually, Smith moved to Deer Lake[,] NL but that his family, including he and his brothers, continued to visit Smith. He recalls the same type of incident occurring once or twice in Deer Lake, while he and his brothers spent the night at Smith’s residence. He states that, after everyone had gone to bed, Smith would come into his room, into his bed, stroke and fondle his genitals and eventually perform oral sex on him until he ejaculated. He recalls that, when this would happen, Smith would never say anything about it the next day, but he would always slip $10 or $20 into Ll.J.’s pocket on the following day.  He recalls this happening once or twice in Deer Lake.

Ll.J. explained that Smith would perform oral sex on him for roughly 10 to 15 minutes during these incidents, always until Ll.J. ejaculated. He recalls that Smith would get him to come to his residence by calling either him or his parents and advising that he had some task or chore for Ll.J. to do at his home. These incidents would have occurred between 1984 and 1987.

In relation to these facts George Smith has pled guilty to counts 51, 53, and 55 on the Indictment.

L.J.:

L.J. began as an alter boy in Cape St. Georges (sic), NL when he was nine years old in 1976.  In 1984 he was 17 years old and first met George Smith, who was a priest at his parish. L.J.’s family was largely involved in the Catholic church.

L.J. spent a lot of time with Smith over a period of five years. The first sexual encounter occurred with (sic) Smith asked L.J. to spend the night at his residence, the Catholic Rectory.  At first L.J. was reluctant but eventually agreed to stay. That evening Smith gave L.J. rye whiskey to drink. L.J. drank enough to feel intoxicated. At bed time Smith asked him to sleep in his bed with him. L.J. acquiesced.

During the night L.J. became nauseous and got up to go to the bathroom. Smith got up with him and started touching him, placed his hand on his thigh, and started rubbing it.

L.J. described a number of incidents that occurred over the following five years.  Throughout that time he felt that he was one of Smith’s “favorite” boys and Smith would pay particular attention to him. Smith would give him money, alcohol, cigars, clothes, and allow him access to his vehicle. L.J. also spent a significant amount of time at Smith’s home where the housekeeper would fix his meals and do his laundry.

In exchange for the items and favours that were given to L.J., Smith would involve him in sexual activities. L.J. describes that the two would go to bed, Smith would fondle him, and “fool around”. He said the fondling eventually led to Smith performing fellatio on him, and later L.J. performing fellatio on Smith. He said this happened repeatedly, as well as mutual masturbation between the two. He described one incident wherein Smith “flipped him over onto his belly” while in the bed, and got onto his back. L.J. asked Smith what he was doing and Smith replied “Don’t worry, it’s not what you think.” He then placed his erect penis between L.J.’s thighs and moved back and forth until he ejaculated onto a towel he had placed on the bed.

Smith considered himself to be intimate with L.J. and thus told him a lot of things. At times, Smith told L.J. that Smith was also involved sexually with L.J.’s younger brother. L.J. recalls that Smith told him about the size of his younger brother’s penis.

Eventually Smith moved to Deer Lake, NL, but continued to arrange for L.J. to visit him in Deer Lake. Smith would make arrangements for L.J. to take a bus from Stephenville to Deer Lake and L.J. would spend the weekend with Smith. While in Deer Lake the sexual incidents continued in the same pattern, wherein Smith would give L.J. gifts, alcohol, cigars and cigarettes, Smith and L.J. would go to bed together, there would be mutual fondling and masturbation, and mutual oral sex. L.J. recalls that, also while in Deer Lake, he had unlimited access to Smith’s vehicle, and Smith consistently gave him money, alcohol, cigarettes and cigars.

L.J. recalls the sexual contact with Smith occurring numerous times over five years. It ended in or around 1989 when L.J. left Newfoundland. However, L.J. would have been at the age of consent at 21 years old, in 1988.

In relation to these facts George Smith has pled guilty to counts 57, 59, and 61 on the Indictment.

J.E.:

J.E. first met Smith when E. was a student at St. Francis Xavier High School in Deer Lake, NL. E. was not a member of Smith’s church, but the Priest’s residence was on E.’s paper route. E. recalls Smith asking him if he would like to do some odd jobs around the church to earn some extra money. E. willingly accepted.

E. recalls Smith being really nice to him, and that Smith would let him drive his car, and would often give him Coors Light beer when he was finished work. E. recalls working around the church for two summers before Smith touched him sexually.

E. recalls that, during those two years, Smith asked him on a couple of occasions to spend the night at Smith’s residence. E. declined.

E. recounts one incident with George Smith that occurred in Deer Lake, NL when Smith invited him into his residence to have a drink. Smith drank whiskey or scotch while he gave E. Coors Light beer. He states that while he was seated in a chair and drinking, Smith approached him and knelt next to him on the floor. Smith then began to rub and stroke E.’s genitals over his clothing. E. states this continued for about a minute. He states that Smith then said to him, “You like that, don’t you?” E. slapped Smith on the side of his face with the back of his hand. He recalls that the motion knocked the glasses from Smith’s face and caused Smith to fall backward. E. recalls stating, “No I don’t, you dirty, fucking, bastard.” He also recalls that Smith was wearing what E. describes as his “priest clothes” at the time.

In relation to these facts George Smith has pled guilty to count 62 on the Indictment.

G.S.:

G.S. grew up in Stephenville, NL, and has six siblings, several of whom were involved with the Catholic church. G.S. and his two brothers closest in age to him were involved in the church at the same time. G.S. was an alter boy and knew George Smith as he was the Parish Priest in his area. At the age of 12 to 14 Smith gave G.S. further custodial duties around the church. G.S. described Smith as a father figure, as his own relationship with his father was virtually non-existent and he would discuss his family issues with Smith on a regular basis. At 19 years old, in 1977, G.S. was kicked out of his family home and, at the time, knew that Smith was living in St. Fintan’s, NL. G.S. drove to Smith’s home and spoke to him about what was going on. Smith offered him alcohol and G.S. recalls having 2 or 3 drinks of rye. He was talking with Smith about his family issues and crying. He does not recall anything after his last drink except blacking out and waking later in the evening in Smith’s spare bedroom. When he awoke Smith was performing anal sex on him. G.S. tried to push Smith off but Smith persisted. He recalls saying to Smith “Get off of me!  Get off of me!” but he was unable to push him off. This happened twice until G.S. collapsed. He then recalls waking again throughout the evening and, on this occasion, Smith was performing oral sex on him. Again G.S. recalls trying to get Smith to stop and even hitting him on the head, but again Smith persisted. G.S. again blacked out. When he awoke a third time he felt nauseous and ran to the bathroom to vomit. When he opened the bathroom door he found Smith naked in the bathroom masturbating. G.S. recalls leaving Smith’s residence right away and driving away.

In relation to these facts George Smith has pled guilty to count 5 on the 8 count Indictment.

R.L.:

R.L. lived in Corner Brook, NL when he first met George Smith. His entire family were devoted Catholics and his aunt worked directly with Smith at the church and at his residence. She also lived in the same residence as Smith. As a result, L. spent a significant amount of time in his aunt’s care and at Smith’s residence. L. was also an alter boy at the church at which Smith was a priest. L. recalls that the residence was always stocked with pop, chips, and chocolate bars and he had access to these. He states that Smith was always extremely nice to him, and repeatedly told him what a nice, smart boy he was. He states that Smith was easy to like and he would build up his confidence with the complimentary things he said to him. He recalls being around seven to ten years old when he first met Smith.

L. states that the sexual abuse started on an occasion when he spent the night at Smith’s residence and the two were watching a hockey game in a downstairs rec room. L. fell asleep on the couch during the game and, later in the evening, Smith woke him up and put him into bed. Smith always stayed in the same spare room in the downstairs of the residence. On this evening, as L. was undressing for bed Smith stayed in the room. When L. got under the bed covers Smith knelt near the bed to pray. He recalls that Smith was still wearing what L. described as his Priest clothes at that time. As Smith was praying he reached under the bed clothes and began to rub, stroke, and fondle L.’s genitals. This continued for several minutes. L. recalls that when Smith was finished praying, he blessed L. and kissed him goodnight. L. recalls that this pattern then occurred the next three or four times that he stayed at Smith’s residence, with Smith fondling him while he was ostensibly praying.

Eventually the sexual contact progressed and Smith asked L. to masturbate him.  Smith began to take L. upstairs to him (sic) own bedroom. This first occurred on an occasion when Smith asked L. to help him move some boxes in and around Smith’s bedroom. L. complied and while he was in the room Smith came in wearing only a housecoat. Smith then hugged L. and as he did he allowed his housecoat to fall open.  Smith was naked underneath. Smith then took L.’s hand and placed it on his own penis and asked L. the (sic) masturbate him. L. did so. L. recalls that this went on for several minutes until Smith ejaculated. L. recalls this happening numerous times over a period of years. He recalls the first incident occurring in or around 1970 to 1972 before he became an alter boy, and the last incident occurring on or around 1975 to 1976.

L. specifically recalls another occasion wherein he attended at Smith’s residence after school (where his aunt lived) because he did not have any mitts, and he was going outside to play with some friends. He told his aunt the same and Smith said that he (sic) when he was done playing, Smith would give him a ride home. Smith picked L. up but rather than bringing him home he brought him to his own home and into his bedroom. On this occasion Smith undid L.’s pants and fondled his genitals.

Finally, L. recalls that, at times, Smith would place his penis in L.’s mouth and ask him to give him oral sex. At other times Smith would perform oral sex on L. On one occasion L. remembers adamantly telling Smith that he did not want the sexual contact to happen again, and Smith telling him that it was ok, that he was not doing anything wrong and that what (he was – sic) he was doing was normal. L. recalls that Smith told him he was special.

In relation to these facts George Smith has pled guilty to counts 6, and 8 on the 8 count Indictment.

VICTIM IMPACT STATEMENTS

[7]             The Criminal Code, R.S.C. 1985, c. C-46, as am., since around 1992, has given a voice to victims by allowing them to detail how the criminal acts have affected their lives. Eight of the complainants took advantage of this option and provided Victim Impact Statements. These are all incredibly compelling and disclose in detail the depth and duration of harm arising from Mr. Smith’s actions. Three of the victims read their statements in court, facing the offender. The poignant and courageous manner in which these three victims read their statements had an obvious impact on the offender and all others present in the court room. I have reviewed and considered each victim’s statement in arriving at a sentence for the charges relating to that victim. I reproduce here a small sample of the consequences disclosed through these Victim Impact Statements:

  • lived in shame and guilt;
  • low self-esteem;
  • unable to relax;
  • poor sleep;
  • recurring nightmares;
  • unable to trust others;
  • distant with partners;
  • alcoholism/drug abuse;
  • dropped out of school;
  • abandoned Catholicism;
  • angry all the time;
  • anxiety and depression;
  • suicidal thoughts;
  • anti-social behaviour;
  • attempted suicide (multiple occasions);
  • interfered with ability to pursue career ambitions; and
  • impaired family relations.

PURPOSE AND PRINCIPLES OF SENTENCING

[8]             The following current provisions of the Criminal Code deal with the purpose and principles of sentencing:

Purpose

718. 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:

                   (a) to denounce unlawful conduct;

                   (b) to deter the offender and other persons from committing offences;

                   (c) to separate offenders from society, where necessary;

                   (d) to assist in rehabilitating offenders;

                   (e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

. . .

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,

shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

[9]             These provisions, for the most part, are consistent with common law principles that preceded their inclusion as part of the Criminal Code. The intent is that judges follow consistent practices and apply the same principles in arriving at a fit sentence that serves to protect the public. Communicating to the offender and others of like mind that they must refrain from criminal activity is a big factor. Revenge is not a factor. Regardless of the ultimate sentence, it cannot make matters right for the victims. This is impossible, and it is not the intent of a sentence. However, sometimes a sentence, as in this situation where the offender has admitted to his crimes, can assist in the healing process.

ATKINS FACTORS

[10]        In addition to these Criminal Code principles of sentencing, other common law principles assist in gauging the severity of each one of this offender’s crimes and maintaining proportionality with other sentences. The following comments of the late Chief Justice Goodridge in R. v. Atkins (1988), 69 Nfld. & P.E.I.R. 99,  4 W.C.B. (2d) 348 (Nfld. C.A.), identify common law principles that are helpful to assessing this offender’s crimes and in that was assisting in the sentencing process:

There are many factors to be considered in imposing sentence in any case. In cases of sexual assault these factors [now referred to in legal parlance as the Atkins’ factors] include the extent of the assault (for sexual assault encompasses a very wide range of human misbehaviour), the degree of violence or force used, the impact of the crime upon the victim, the family of the victim and the offender, the degree of trust involved, public abhorrence to the type of crime involved, the attitude of the offender to what he has done, his plea, the biological and psychiatric factors that lead to the commission of the offence, the need for specific and general deterrence, the prospect of successful rehabilitation, the antecedents and age of the offender, the time spent in custody prior to trial and sentences imposed by other courts in Newfoundland and elsewhere in Canada.

Vengeance is not a factor. A sentence is designed to protect the public, not to abate its anger at a particular crime. As has frequently been said, protection is attained through a balance of deterrence and rehabilitation. Neither should overwhelm or negate the other. The proper balance will vary from case to case.

[11]        Both counsel made submissions on each of the Atkins factors in a general way, rather than a count by count approach. This was appropriate considering the degree of similarity among many of the counts. I too will discuss each Atkins factor in general terms, even though the sentence for each count will be based on a fact specific assessment surrounding each count. While I will go through the exercise of assigning a sentence for each count based on that assessment, the total will not be too relevant for this offender. That is because the total of his consecutive sentences will be unduly long, well beyond his life expectancy, and well beyond comparable global sentences. A downward adjustment will be necessary to satisfy the sentencing principle of totality as set out in s. 718.2(c) of the Criminal Code: “where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.”

Extent of the assault

[12]        The extent of the sexual assaults committed by this offender covers the whole spectrum of sexual violation and sexual manipulation. At the lower end there is kissing and touching; at the highest end there is anal intercourse; and in between there is genital fondling, simulated sex, mutual fellatio, and mutual masturbation. The frequency of the assaults varied among the victims from a single incident to an undeterminable number of incidents continuing over several years.

Degree of violence or force

[13]        The offender physically held Mr. H.’s head so that the mouth was lined up in front of his penis. He held it in this position until oral sex was performed. This occurred twice. There is also the usual level of violence inherent to any form of assault on sexual integrity, especially in the cases of anal intercourse. However, on the broad spectrum of sexual assaults, the physical force or violence in this case was low. It is not an aggravating factor. The circumstances differ from the two Mount Cashel authorities submitted by the Crown in which physical force and violence were high.[2]

Impact on victim, family and offender

[14]        I have already discussed in general terms the impact on the victims. For the most part, the victims were at an age where one would expect them to be just coming into their sexuality and learning about sex. These boys were mostly pubescent or pre-pubescent. These are formative sexual years. The victims who provided statements say that the offender’s crimes have had significant irreversible impact on their lives. Physical manifestations and psychological manifestations exist. They have suffered from a career perspective and from a family perspective. On the latter, a few described damaged relationships with partners and their own children. One described a breakdown in the relationship with his mother and siblings. Intimacy and sexuality have been adversely impacted. I am satisfied that the impact on all the victims and their families is immeasurable and ongoing.

[15]        As for the impact on the offender, the January 8, 2013 psychiatric report submitted into evidence reveals that Mr. Smith suffers guilt for his actions and feels the need to suffer consequences for his terrible deeds.

Degree of trust

[16]        The offender was the priest in rural parish communities. The public nature of this office within a rural community and the usual authority associated with pastoral leadership placed the offender in a position of great trust. Parents trusted him with their children enough to allow the children to remain overnight at the parish residence. They reasonably assumed, by virtue of his public and religious office, that he would be a positive influence and would provide appropriate supervision.

[17]        Beyond the high degree of trust associated with his office, the offender had special supervisory roles (trust positions) with five victims who were altar boys, one victim who was his newspaper carrier boy and one victim who performed small jobs for the parish. The impact of this breach of trust is evident from the Victim Impact Statements. Some lost trust in authority figures. A few turned away from Catholicism.

Public abhorrence

[18]        The actions of this offender are a major letdown to the community, to the office that he held, and to the church that he represented. The revelations shock our community, even when placed in context with other sexual abuse crimes by clergy. This man targeted and preyed on male children for two decades. Any crimes against children, but especially sexual crimes, shock the community. The strongest words come to mind: abhorrent, abominable, cruel and detestable. These victims were all of a vulnerable age. The offender was in an office where members of the public might reasonably assume he was looking out for the welfare of these vulnerable children. Instead, he manipulated and abused these children. The offender’s deeds give rise to the highest degree of public abhorrence.

Attitude of the offender

[19]        The attitude of the offender, at least since the charges were filed, appears to be one of genuine remorse. He admitted to the criminal acts and pled guilty. From the January 8, 2013 psychiatric report it is evident that he feels guilt; he feels he is deserving of punishment; he feels the need for penance; and he knows that what he did was terribly wrong. By his words and actions in court, turning to face his victims and expressing a sincere apology, I saw and heard an attitude of genuine remorse.

Plea

[20]        As noted above, the offender pled guilty, sparing the victims of further trauma associated with retelling the horrific details in open court.

Biological and psychiatric factors

[21]        The January 8, 2013 psychiatric report indicates that the offender has a sexual disorder labeled homosexual hebephilia, which is characterized by sexual interest in pubescent boys approximately 11–14 years old. He also has a past history of alcohol abuse. He was treated for both issues at the Southdown Institute in Ontario during 1992. This institute was founded specifically to address the needs of clergy in areas of addiction and mental health. The psychiatric report indicates that the offender has not committed sexual offences or consumed alcohol since his treatment at Southdown Institute.

Specific and general deterrence

[22]        When a court imposes a sentence for an offence that involved the abuse of a person under the age of 18 years, the objectives of denunciation and deterrence are given primary consideration. Here the psychiatric report indicates that it is unlikely that the offender will commit a sexual offence again, suggesting specific deterrence may no longer be a major concern. Even if that is true, the sentences imposed here must be sufficient to achieve general deterrence. The sentences have to communicate to the general public that this type of behaviour, regardless of any delay in reporting, will never be tolerated and will be punished severely.

Prospect of successful rehabilitation

[23]        I rely on the psychiatric report, and submissions from both counsel, to conclude that rehabilitation has been underway since 1992. Following treatment in 1992 the offender has not repeated his abusive behaviour toward children. Crown did not take issue with submissions from Defence counsel suggesting that the offender has led a positive lifestyle as a contributing member of society since this treatment concluded. Rehabilitation may have been achieved already and is not going to be a significant factor in this sentencing.

Antecedents and age of the offender

[24]        Age is a minor factor, which sometimes has justified a modest downward adjustment to a sentence when coupled with a lengthy period of good behaviour. Mr. Smith is 75 years old and has been of good behaviour for the past 21 years. He had no criminal record prior to these current convictions.

Time spent in custody

[25]        Pre-sentence custody is a factor under section 719(3) of the Criminal Code to be considered in deciding an appropriate sentence. The offender voluntarily went into custody on February 24, 2012. He has been in custody for 12 months and 18 days. Both counsel suggest that I allow this offender one to one credit for pre-sentence custody. I accept that joint submission.

Sentences imposed

[26]        The sentencing principle of parity requires a sentence to be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Relying on the authorities submitted by counsel, the sentence range, in broadest terms, is from three to eleven years in jail. In all of the cases submitted, which involved multiple victims or multiple crimes, the courts arrived at a global sentence based on totality, rather than the sum of the individual consecutive sentences. I discuss below, in summary form, a selection of these authorities.[3]

[27]        In R. v. J. (B.W.), (1993) 109 Nfld. & P.E.I.R. 80, 20 W.C.B. (2d) 373 (Nfld. C.A.), the offender, 30 years old at the time of the offences, was convicted of three counts of gross indecency, four counts of indecent assault and six counts of sexual assault. There were five victims, four of whom were foster children in a foster home operated by the offender’s mother. The incidents were carried out during a three year time frame when the victims’ ages ranged from six to twelve years old. The acts involved sexual touching, forcing the children to masturbate him, and forcing the children to perform fellatio. The acts occurred as often as two or three times a week for the four foster children, resulting in hundreds of individual assaults. There were occasions when the offender directed some of the children to watch while he was sexually assaulting another child. The court determined sentences ranging from one to three years were appropriate for each of the counts, that concurrency was appropriate for offences against the same victim, that consecutive sentences were appropriate between victims, and that variations (further concurrency) to the combined sentences was required to achieve a proper totality. The net effect was a global prison sentence of eight years.

[28]        Although the court ranked this case with the most serious of such matters in this Province, I am of the view that the facts and circumstances surrounding Mr. Smith’s actions are more compelling. He had eight more victims, twenty-five more convictions, a more serious breach of trust, more serious acts of sexual violation and his sexual abuse conduct continued over a much longer time frame. To the extent that I am guided by this authority, Mr. Smith’s global prison sentence should be greater than eight years.

[29]        In R. v. English (1994), 122 Nfld. & P.E.I.R. 15, 24 W.C.B. (2d) 353 (Nfld. C.A.), the offender was a Christian Brother at Mount Cashel Orphanage, and was in loco parentis, vis-à-vis his 11 victims. He was convicted of one count of gross indecency, ten counts of indecent assault, and two counts of assault causing bodily harm. The victims were all boys ranging in age from eight to thirteen years old. The appeal court described in general terms, and without details, the abusive acts: kissing on the mouth, inserting tongue in victims’ mouth, genital fondling, inserting penis between boys’ legs to simulate intercourse until ejaculation, attempting anal intercourse, digital anal penetration, attempting to force boys to perform oral sex, and physically beating boys. The frequency of the abusive acts for some victims was every day. The duration of the continuing assaults varied from six months to thirty months. At trial the individual sentences were one year for each count of assault; four, five or six years for the indecent assaults depending on severity; and five years for the gross indecency. The appeal court decided that the total sentence imposed by the trial judge at 13 years was excessive, and reduced it to 10 years. Steele, J.A. commented at para. 37:

“..the individual sentences exacted by the trial judges tended to be at the maximum end of the scale; that there is disparity in the sentences handed the appellant when considered in the context of the punishment given the other Christian Brothers; finally, and perhaps of most concern, in reflecting upon the sum punishment assessed the appellant, it is evident that the trial judges omitted to take into full consideration the totality..”

[30]         The degree of violence used, the higher level of trust, the lack of remorse and the frequency of acts, make the criminal actions of Mr. English more serious in these respects. But in many other respects the criminal actions of Mr. Smith are more serious by comparison: move victims, more convictions, longer duration of the criminal behaviour, more serious nature of the sexual acts (anal intercourse), use of alcohol in seducing the children, assaults while victims were asleep or passed out, use of adult pornographic films, and use of gifts and other grooming tactics. I take from R. v. English that the individual sentences for more serious indecent assaults (e.g. repeated sexual violation that included anal intercourse) warrant a jail term of up to four or five years each.

[31]        In R. v. J. S. S. (1995), 87 O.A.C. 158, 29 W.C.B. (2d) 310, the sexual abuse activity included masturbation, buggery and fellatio on three children resulting in three counts. One of the victims was abused on two occasions. The other two were abused on several occasions over a 15 month period. There was physical violence committed against one of the victims. The offender had a prior criminal record of sexual abuse. A global sentence of 10 years was imposed.  The number of counts and number of victims is much lower compared to Mr. Smith. The prior criminal record is not really a distinguishing feature. Both continued with their crimes over a long time period. Mr. J.S.S. was caught in his crimes once before. Mr. Smith continued his crimes for many years and was not caught. The two are not so different.

[32]        In R. v. W.N., 1995 ABCA 19, the abusive acts included masturbation, fellatio, digital penetration of the anus and simulated intercourse committed on four children. There was a high degree of sexual and physical violence. The acts occurred weekly over 10 year period. A global sentence of 11 years was imposed.

[33]        In R. v. Plint, [1995] B.C.J. No. 3060 (B.C. S.C.), the abusive acts included genital touching, masturbation, buggery and fellatio committed against several (not specified) male children attending an Indian residential school. There were 16 counts of indecent assault. The offender was in a supervisory role vis-à-vis the victims. Some of the victims were physically forced to participate. The crimes continued over a 20 year period.  The individual indecent assault sentences were mostly four years each, but those involving anal intercourse were seven years each. The culpability, the range of seriousness, the mitigating and aggravating factors, the long delay in prosecution, the age of the offender at time of conviction (77), the exemplary life led following the last offence, the high degree of remorse, and the other circumstances of this case, present a high degree of similarity with Mr. Smith’s situation. A global sentence of 11 years was imposed.

[34]        In R. v. Lasik (1999) 180 Nfld. & P.E.I.R. 125, 43 W.C.B. (2d) 236 (Nfld. S.C.(T.D.)), the abusive acts included kissing, genital touching, masturbation, buggery and fellatio committed against seven boys. All of the victims were residents of Mount Cashel Orphanage and the offender was in loco parentis vis-à-vis his victims. There were 19 counts of sexual and common assaults. The reasons imply that the acts were committed over a three year period that the offender was assigned to Mount Cashel Orphanage (1954 to 1957). Some of the acts included threats of violence; some acts included actual violence; some victims were assaulted only once or twice; one victim was assaulted around 200 times; other victims were assaulted on several occasions; the boys’ ages ranged from nine to fourteen years old; and the offender showed no remorse. Dunn, J. referred to R. v. Plint and acknowledged that, in the late reporting cases, a reduction of sentence can be considered for an offender who has an unblemished positive record post offence and is genuinely remorseful. There was no mitigation for Mr. Lasik due to lack of remorse but Mr. Smith may qualify for consideration here.

[35]        The assaults described in R. v. Lasik are substantially more physically violent compared with Mr. Smith; the trust relationship described in R. v. Lasik is greater compared with Mr. Smith; and the number of victims and the number of charges are fewer compared with Mr. Smith. The sentence for each indecent assault (several of which were comparable to the indecent assaults committed by Mr. Smith) ranged from one month to one year, for the assaults involving anal intercourse four and five years, for gross indecency three years, and for the common assaults six months to two years. A global sentence of 11 years was imposed.

[36]        In R. v. Cloutier, 2011 ONCA 484, a Roman Catholic priest groomed his victims through the provision of gifts, cigarettes, alcohol and trips. The criminal acts included genital touching, simulated intercourse, masturbation and fellatio committed on four boys. The victims’ ages varied from nine to fourteen years old at the time of the initial assault. Charges were spread over a nine year period and included multiple incidents. The exact number of assaults against each victim was not clear from the reasons and the focus of the appeal was more on legal error in convicting rather than sentence. The details on sentence are sparse but it is obvious that all sentences ran concurrently. The end result was a global sentence of five years. The appeal court noted that the sentence was at the low end of the range, but determined that it should not be disturbed on appeal.

[37]        The circumstances with Mr. Smith involve similar patterns of grooming and sexual abuse, but Mr. Smith’s criminal behaviour continued over a longer time frame and involved more victims. I take from R. v. Cloutier that individual sentences for the indecent assaults of up to five years are within the range, and that a global sentence of five years for sexual crimes against four boys is at the lower end of the range.

[38]        In R. v. Lavoie, 2012 QCCA 2112, a music teacher (age 72 at time of conviction) pled guilty to 21 counts of sexual abuse involving 13 male children, over a 12 year period. The criminal acts included genital touching and masturbation.  There were eleven counts of indecent assault, four counts of gross indecency, and six counts of sexual assault. The victims’ ages varied from 12 to 15 years old. For 10 of the children the abuse was repeated on several occasions. The court imposed a global sentence of five years. Although the court did not provide a breakdown, it referred at para. 27 to a general range for similar sexual abuse crimes of between twelve months and four years for each count. The case has similarities with Mr. Smith, but is distinguished on the basis that Mr. Smith’s crimes included acts of anal intercourse, included multiple acts of fellatio and continued over a much longer time frame.

[39]        In R. v. Rowsell (1992), 102 Nfld. & P.E.I.R. 302, 17 W.C.B. (2d) 141 (Nfld. C.A.), the offender was convicted of 13 charges of sexual assault and indecent assault. The victims were girls ranging from five to twelve years of age. One of the victims was raped; five of the victims were subjected to a single incident of touching the vaginal or breast area; and seven of the victims were subjected to multiple incidents of touching the vaginal or breast areas. The appeal focused on the sentencing principle of totality. The court confirmed that a total sentence of seven years was not unreasonable. Although Mr. Smith’s situation involves the same number of victims, the seriousness, repetitive nature and the duration of the various crimes committed by him are more significant.

[40]        In R. v. Ralph (1993), 105 Nfld. & P.E.I.R. 220, 19 W.C.B. (2d) 241 (Nfld. C.A.), the offender was convicted for ten counts of indecent assault and one count of gross indecency. There were 10 male victims, all residents of Mount Cashel Orphanage and all in loco parentis to the offender. The crimes among the 10 boys varied in seriousness. The single charge of gross indecency involved oral sex which continued over a period of a few months. The remaining charges for indecent assault involved fondling, masturbation and simulated intercourse by rubbing penis against the boys. For four victims there were one or two incidents, and these assaults involved fondling, simulated sex or masturbation. For the remaining victims the assaults continued over periods of time ranging from a few months to two years. The appeal court adjusted sentences for counts which involved fondling or simulated sex to two years each and arrived at a total sentence (after concurrency) of seven years. The facts and circumstances of this case have similarities to Mr. Smith’s. The target children were young children, some as young as seven years old. However, on the scale of seriousness based on the nature and duration of the acts, Mr. Smith’s crimes are more serious. His acts included a few instances of anal sex and multiple acts of fellatio continuing over two decades.

[41]        In R. v. C. (I.), 39 B.C.A.C. 227, the offender, a parish priest, was convicted of fourteen counts of indecent assault, one count of gross indecency and one count of buggery. The offences occurred over a six year period. Most of the victims were children aged between seven and twelve. Most of the incidents involved the offender asking the victims to remove their trousers and he would then strike their backside with a piece of plastic or a ruler. The crime of gross indecency involved the offender asking the boys to flagellate him by spanking his buttocks with a ruler. One of the incidents involved a single occasion of genital fondling. Another involved a single incident of attempted buggery. The circumstances of Mr. Smith’s crimes (repetitive acts of fondling, mutual masturbation, oral sex, anal sex, and the assaults continuing over two decade) means this case is not comparable and not helpful with respect to totality of sentence. It is helpful on the individual sentences. These varied from one to four years. The sentence of four years related to the attempted buggery. All of the sentences were to be served concurrently resulting in a total sentence of four years. The court commented that the total sentence might have been greater but for the fact the offender had refrained from acting out his tendencies for almost 30 years.

[42]        In R. v. Barry (1998), 167 Nfld. & P.E.I.R. 65, 40 W.C.B. (2d) 129 (Nfld. S.C. (T.D.)), the offender was convicted for one count of gross indecency and three counts of indecent assault. The male victims were all residents of Mount Cashel Orphanage and all in loco parentis to the offender. The boys ranged from 10 to 12 years of age. The acts included kissing, fondling and simulated intercourse by rubbing his penis against the boys. Two of the counts involved a single incident of kissing or genital fondling. The sentence for the gross indecency count was two years. The total sentence was three years. The criminal activity was brief and the number of victims and counts were fewer than in Mr. Smith’s situation. Overall, this authority is not helpful in arriving at a global sentence.

[43]        In R. v. Douglas (1994), 40 B.C.A.C. 28, 22 W.C.B. (2d) 386, there were 12 charges of gross indecency. The crimes were committed in the 60s and over a three or four year time frame. The victims were seven teenage aboriginal boys residing in a community where the offender was serving as a Salvation Army minister. Medical evidence indicated that the offender was a homosexual paedophile. The acts included fondling, masturbation and fellatio. The court does not provide any detail on which acts justified the various sentences. For that reason the decision is of limited value as a comparable. The appeal court ordered three year sentences on each count of gross indecency. There were two different general timeframes when the offences occurred. Within each timeframe the sentences were concurrent and as regard the two timeframes they were consecutive. The total sentence was six years.

[44]        In R. v. Sylvestre, 2006 ONCJ 412, the offender, a Roman Catholic priest, was 84 years old at time of trial. He had no previous record. He pleaded guilty and was convicted of 47 counts charging historic sexual offences against 47 female children. The victims ranged in age from seven to fifteen. The acts included fondling of the breasts, kissing, fondling of the genitalia, digital penetration, exposure of the genitals and having the victims touch his genitals to assist in masturbation. He used inducements, gifts and threats to compel victims to participate in various sexual acts. The court took the accused’s age, guilty plea and health conditions as mitigating factors in imposing a three year global sentence. The offender was suffering diabetes, kidney failure, anemia, hypertension and dementia. Expert opinion gave his life expectancy at three years. One of the counts had a maximum sentence of two years. For all the other counts the court imposed three years each. All sentences were to run concurrently. The result was a total sentence of three years. I cannot reconcile this decision with other authorities. It is a low sentence based on the nature of the acts, the number of victims, the age of the victims, the threats and the breach of trust. I can only assume that the judge took the offender’s grave health situation and limited life expectancy into account. The sentence imposed, three years, was a life sentence if based on the offender’s life expectancy.

AGGRAVATING AND MITIGATING FACTORS

[45]        Aggravating factors are the circumstances which tend to increase the seriousness or outrageousness of a given crime and may result in a longer sentence within the broad range of similar sentences.

[46]        Mitigating factors are the opposite. While they do not justify or excuse a given crime, they tend to reduce the seriousness and may justify a lesser sentence.

[47]         In this matter, the aggravating circumstances include the young age of the victims, the significant number of victims, the continuation of the abusive behaviour over a period of two decades, the repeated nature of the sexual abuse against several of the victims, the serious nature of some of the sexual acts, the breach of trust, the use of alcohol on the children (typically preceding the first assault), assaults while victims were asleep or passed out, the threat to one of the victims that he would assault that victim’s brothers if he did not continue, the luring behaviour with gifts, the use of pornographic films as part of the grooming behaviour, the use of force (one victim) and the significant long-term emotional and physical impact of the crimes on the victims and their families.

[48]        The mitigating circumstances include the submission to rehabilitative treatment (1992), the low risk to reoffend, the guilty plea and the apology to the victims in court. His admission of these crimes has helped the healing process for the victims. The absence of a prior criminal record is sometimes accepted as a mitigating factor. However, in this case, because the crimes continued over such a long period, I do not accept the absence of a criminal record as a relevant mitigating factor. Also, for a similar reason, I do not accept the psychiatric diagnosis (homosexual hebophilia) as a mitigating factor. If Mr. Smith had sought treatment soon after his abusive sexual behaviour began then I may have given this psychiatric diagnosis weight as a mitigating factor.

[49]        I find that the aggravating factors significantly outweigh the mitigating factors and justify a sentence at the high end of the broad range when comparing sentences for offenders with similar patterns of criminal behaviour.

POSITION OF PARTIES

[50]        After a review of the authorities, the Crown suggested a global sentence somewhere between nine and thirteen years, less credit for time served. The Defence suggested a global sentence somewhere between seven and nine years, less credit for time served.[4]

SENTENCE TOTALITY

[51]        The process of arriving at an appropriate total sentence in this case involves, of necessity, deciding which sentences should be concurrent and which should be consecutive. In R. v. Crocker (1991), 93 Nfld. & P.E.I.R. 222, 292 A.P.R. 222, the late Chief Justice Goodridge suggested that:

… Consecutive sentences should be imposed unless there is a valid reason not to do so. Each sentence should be an appropriate one for the offence. Concurrent sentences may, but are not required to be, imposed where multiple convictions arise out of several offences which constitute a single criminal adventure, and may also be imposed to achieve proper totality for multiple convictions.

[52]        At para. 63 of R. v. Ralph Goodridge, C.J.N. indicated that “sentences for different offences, notwithstanding that they are the same nature, should generally be consecutive unless the totality is disproportionate”. In this case, even though there are multiple offences for some of the victims, I intend to treat (as a starting position) offences against the same victim as a single criminal adventure and follow the principle that sentences in respect of each victim should be consecutive to each other. This is consistent with what occurred in R. v. J. (B.W.). The issue remains whether the application of the totality principle justifies a reduction of individual sentences, or further concurrency, to achieve a proper totality.

[53]        At para. 34 of R. v. Hutchings, 2012 NLCA 2, Green, C.J.N.L. provided guidelines for a step by step process to sentencing where the application of the totality principle is engaged:

1. When sentencing for multiple offences, the sentencing judge should commence by identifying a proper sentence for each offence, applying proper sentencing principles.

2. The judge should then consider whether any of the individual sentences should be made consecutive or concurrent on the ground that they constitute a single criminal adventure, without consideration of the totality principle at this stage.

3. Whenever, following the determinations in steps 1 and 2, the imposition of two or more sentences, to be served consecutively, is indicated, the application of the totality principle is potentially engaged. The sentencing judge must therefore turn his or her mind to its application.

4. The approach is to take one last look at the combined sentence to determine whether it is unduly long or harsh, in the sense that it is disproportionate to the gravity of the offence and the degree of responsibility of the offender.

5. In determining whether the combined sentence is unduly long or harsh and not proportionate to the gravity of the offence and the degree of responsibility of the offender, the sentencing court should, to the extent of their relevance in the particular circumstances of the case, take into account, and balance, the following factors: (a)the length of the combined sentence in relation to the normal level of sentence for the most serious of the individual offences involved;

(b) the number and gravity of the offences involved;

(c) the offender’s criminal record;

(d) the impact of the combined sentence on the offender’s prospects for rehabilitation, in the sense that it may be harsh or crushing;

(e) such other factors as may be appropriate to consider to ensure that the combined sentence is proportionate to the gravity of the offences and the offender’s degree of responsibility.

6. Where the sentencing judge concludes, in light of the application of those factors identified in Step 5 that are deemed to be relevant, that the combined sentence is unduly long or harsh and not proportionate to the gravity of the offences and the offender’s degree of responsibility, the judge should proceed to determine the extent to which the combined sentence should be reduced to achieve a proper totality. If, on the other hand, the judge concludes that the combined sentence is not unduly long or harsh, the sentence must stand.

7.  Where the sentencing court determines that it is appropriate to reduce the combined sentence to achieve a proper totality, it should first attempt to adjust one or more of the sentences by making it or them concurrent with other sentences, but if that does not achieve the proper result, the court may in addition, or instead, reduce the length of an individual sentence below what it would otherwise have been.

8.  In imposing individual sentences adjusted for totality, the judge should be careful to identify:

(a) the sentences that are regarded as appropriate for each individual offence applying proper sentencing principles, without considerations of totality;

(b)  the degree to which sentences have been made concurrent on the basis that they constitute a single criminal adventure; and

(c)  the methodology employed to achieve the proper totality that is indicated, identifying which individual sentences are, for this purpose, to be made concurrent or to be otherwise reduced.

9.  Finally, the sentencing judge should indicate whether one or more of the resulting sentences should be further reduced to reflect any credit for pre-trial custody and if so, by how much.

DISPOSITION

[54]        In accordance with R. v. Hutchings, sentences are set for each count, and then, consistent with R. v. J. (B.W.), offences against the same victim are treated as a single criminal adventure justifying concurrency. This latter point is sensible and practical here, but will not always be the case. In this particular case, with so many charges and so many victims, it would be counterproductive to do otherwise. I know already that to keep this sentence in line with similar cases, and arrive at a proportional global sentence, even further concurrency of sentences among victims will have to be considered.

[55]        The initial step of having the sentences for all offences against any particular victim run concurrently, and the sentences for offences between different victims consecutive to each other (which I have done but which I do not detail here), results in a jail sentence of almost 32 years. That would be unduly long and harsh. The sentencing principle of totality requires me to re-evaluate matters (steps 5 to 8 as set out in para. 34 of R. v. Hutchings) and adjust the sentences to arrive at a reasonable global sentence consistent with similar authorities. Considering the factors and variables discussed in R. v. Hutchings, the sentences for crimes against D.B., W.B., S.B., Ll.J., L.J., J.E., G.S. and R.L. shall be served concurrently with Count No. 5 of Indictment 201204G-0048. The sentences for crimes against the other victims (P.H., D.S., R.P., H.P.G., and K.B.) shall be consecutive to one another. The result is a global sentence of 11 years less time served.

[56]        Mr. Smith’s crimes are serious, involve more victims,  and result in more convictions than any of the offenders from the Mount Cashel Orphanage cases discussed above. Although Mr. Smith has mitigating factors not present in many of the Mount Cashel cases, I find that the aggravating factors significantly outweigh the mitigating factors. I assess Mr. Smith’s circumstances as warranting a total sentence consistent with R. v. English, R. v. Plint, and R. v. Lasik. I have gone to the high end, at 11 years, after assessing, balancing out, and comparing the aggravating and mitigating factors between this situation and the submitted authorities.

[57]        The specific sentence breakdowns are as follows:

P.H.

  • Count No. 1 — Indecent assault between January 1, 1971 and July 14, 1971, at Stephenville (fondling genitals) one year concurrent with Count No. 5.
  • Count No. 3 — Assault between January 1 and July 14, 1971 at Stephenville — 30 days concurrent with Count No. 5.
  • Count No. 5 — Indecent assault between July 15, 1971 and December 1, 1973, at Stephenville (included oral sex and anal intercourse) — four years consecutive.
  • Count No. 6 — Indecent assault between January 1 and July 14, 1971 at Corner Brook (one occasion but “same pattern”) — one year concurrent with Count No. 5.
  • Count No. 8 — Assault between January 1 and July 14, 1971 at Corner Brook — thirty days concurrent with Count No. 5.
  • Count No. 10 — Indecent assault between July 15, 1971 and December 1, 1973 at Corner Brook — I order this count stayed. There is a single incident described in the agreed facts and that incident is already covered within Count No. 6.
  • Count No. 11 — Indecent assault between January 1 and July 14, 1971 at Port Saunders (one occasion but included oral sex and anal intercourse) — three years concurrent with Count No. 5.
  • Count No. 13 — Assault between January 1 and July 14, 1971 at Port Saunders — six months concurrent with Count No. 5.
  • Count No. 15 — Indecent assault between July 15, 1971 and December 1, 1973 at Port Saunders — I order this count stayed. There is a single incident described in the agreed facts and that incident is already included in Count No. 11.
  • Count No. 16 — Indecent assault between January 1 and July 14, 1971 at Port aux Basque (two occasions and included fondling, masturbating and oral sex) — two years concurrent with Count No. 5.
  • Count No. 18 — Assault between January 1 and July 14, 1971 at Port aux Basque — thirty days concurrent with Count No. 5.
  • Count No. 20 — Indecent assault between July 15, 1971 and December 1, 1973 at Port aux Basque — I order this count stayed. There is a single incident only described in the agreed facts and that incident is already included in Count No. 16.
  • Count No. 22 — Indecent assault between July 22 and September 30, 1976 at St. Fintan’s (sexual contact) — six months concurrent with Count No. 5.

D.S.

  • Count No. 24 — Indecent assault between December 1, 1973 and June 30, 1974 at Stephenville (multiple incidents of fondling, masturbation, fellatio) — three years consecutive.
  • Count No. 1 (from 201204G0195) — indecent assault between the March 1, 1974 and April 30, 1974 in Nova Scotia (oral sex during two night sleep over) — two years concurrent with Count No. 5.
  • Count No. 1 (from 201304G0024) — indecent assault between April 4, 1974 and April 21, 1974 in New Brunswick (oral sex during single over night stay in hotel) — two years concurrent with Count No. 5.

R.P.

  • Count No. 3 (from 201204G0195) — indecent assault between May 1, 1968 and August 31, 1968 in Nova Scotia (kissing and genital fondling during single over night stay at home of offender’s mother) — one year concurrent with Count No. 25.
  • Count No. 25 — Indecent assault between August 10, 1969 and July 14, 1971 at Port Saunders (multiple incidents of fondling, masturbation, fellatio, and one attempt at anal intercourse) — three years consecutive.
  • Count No. 27 — assault between August 10, 1969 and July 14, 1971 at Port Saunders — six months concurrent with Count No. 25.
  • Count No. 29 — Indecent assault between July 15, 1971 and December 15, 1971 at Port Saunders (fondling, masturbation, fellatio) — three years concurrent with Count No. 25.
  • Count No. 30 — Indecent assault between August 10, 1969 and July 14, 1971 at Corner Brook (fondling, masturbation, fellatio) — three years concurrent with Count No. 25.
  • Count No. 32 — Assault between August 10, 1969 and July 14, 1971 at Corner Brook — six months concurrent with Count No. 25.
  • Count No. 34 — Indecent assault between July 15, 1971 and December 15, 1971 at Corner Brook (fondling, masturbation, fellatio) — three years concurrent with Count No. 25.
  • Count No. 35 — Indecent assault between August 10, 1969 and July 14, 1971 at Stephenville (fondling, masturbation, fellatio) — three years concurrent with Count No. 25.
  • Count No. 37 — Assault between August 10, 1969 and July 14, 1971 at Stephenville — six months concurrent with Count No. 25.
  • Count No. 39 — Indecent assault between July 15, 1971 and December 15, 1971 at Stephenville (fondling, masturbation, fellatio) — three years concurrent with Count No. 25.

H.P.G.

  • Count No. 41 — Indecent assault between September 2, 1976 and June 30, 1977 at St. Fintan’s (single occasion of genital fondling) — six months consecutive.

K.B.

  • Count No. 43 — Indecent assault between September 1, 1977 and May 31, 1978 at St. Fintan’s (single occasion of genital fondling) — six months consecutive.

D.B.

  • Count No. 45 — Indecent assault between July 22, 1976 and May 31, 1979 at St. Fintan’s (incidents of genital fondling continuing over 6 to 12 months and one incident of fellatio) — two years concurrent with Count No. 5 of Indictment 201204G-0048.

W.B.

  • Count No. 47 — Indecent assault between July 22, 1976 and December 26, 1979 at St. Fintan’s (genital fondling, fellatio, simulated intercourse continuing over three to five years) — four years concurrent with Count No. 5 of Indictment 201204G-0048.

S.B.

  • Count No. 49 — Indecent assault between January 1, 1980 and May 31, 1980 at St. Fintan’s (two incidents of genital fondling and masturbation) — one year concurrent with Count No. 5 of Indictment 201204G-0048.

Ll.J.

  • Count No. 51 — sexual assault between July 18, 1984 and December 31, 1984 at Cape St. George (multiple incidents of genital fondling, masturbation and fellatio) — three years concurrent with Count No. 5 of Indictment 201204G-0048.
  • Count No. 53 — sexual assault between January 1, 1985 and September 20, 1986 at Cape St. George (multiple incidents of genital fondling, masturbation and fellatio) — three years concurrent with concurrent with Count No. 5 of Indictment 201204G-0048.
  • Count No. 55 — sexual assault between September 20, 1986 and December 31, 1987 at Deer Lake (one or two incidents of genital fondling, masturbation and fellatio) — two years concurrent with Count No. 5 of Indictment 201204G-0048.

L.J.

  • Count No. 57 — sexual assault between July 18, 1984 and December 31, 1984 at Cape St. George (multiple incidents of genital fondling, masturbation, simulated intercourse, and fellatio)
    — three years and six months concurrent with Count No. 5 of Indictment 201204G-0048.
  • Count No. 59 — sexual assault between January 1, 1985 and September 20, 1987 at Cape St. George (multiple incidents of genital fondling, masturbation, simulated intercourse, and fellatio)
    — three years and six months concurrent with Count No. 5 of Indictment 201204G-0048.
  • Count No. 61 — sexual assault between September 20, 1986 and December 31, 1989 at Deer Lake (multiple incidents of genital fondling, masturbation, simulated intercourse, and fellatio) — three years and six months concurrent with Count No. 5 of Indictment 201204G-0048.

J.E.

  • Count No. 62 — sexual assault between July 1, 1988 and July 31, 1989 at Deer Lake (single brief incident of genital fondling outside clothing) — four months concurrent with Count No. 5 of Indictment 201204G-0048.

G.S.

  • Count No. 5 (from 201204G0195) — indecent assault between February 28, 1977 and June 31, 1977 at St. Fintan’s (offender performing oral and anal sex over a single night while victim passed out or heavily sedated from the effects of alcohol) — three years concurrent with Count No. 5 of Indictment 201204G-0048.

R.L.

  • Count No. 6 (from 201204G0195) — indecent assault between January 1, 1971 and January 1, 1976 at Corner Brook (multiple incidents of genital fondling, masturbation, and fellatio continuing over several years) — four years concurrent with Count No. 5 of Indictment 201204G-0048.
  • Count No. 8 (from 201204G0195) — assault between January 1, 1971 and January 1, 1976 at Corner Brook — six months concurrent with Count No. 5 of Indictment 201204G-0048.

[58]        I allow one for one credit for time served (1 year and 18 days) resulting in a remaining jail term of 9 years and 347 days.

OTHER ORDERS

Firearms prohibition

[59]        Under s. 109(1)(a) of the Criminal Code a Firearms Prohibition Order is mandatory against the offender. Accordingly, Mr. Smith will be prohibited from possessing:

  • Any firearm, cross-bow, restricted weapon, ammunition and explosive substance commencing today and continuing for ten years after Mr. Smith’s release from imprisonment for this offence; and
  • For life, any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition.

As well, Mr. Smith is to immediately arrange surrender of anything, the possession of which is prohibited by this Order that is in his possession and any related authorization, licence or registration certificate.

DNA Order

[60]        Sexual assault is a primary designated offence under s. 487.04(a)(i.1) of the Criminal Code. Accordingly, I make an order in Form 5.03 authorizing the taking from George Smith for the purpose of forensic DNA analysis of any number of samples of bodily substances that is reasonably required for that purpose by means of the investigative procedure described in s. 487.06(1).

Sex Offender Registration

[61]        Sexual assault is a designated offence under s. 490.011(1)(a)(ii) of the Criminal Code. Accordingly, where, as here, the prosecutor requests an order under the Sex Offender Information Registration Act, S.C. 2004 c-10, the Court shall make such an order unless the exception in s. 490.012(4) applies. The offender has not met the burden of establishing that if the Order were made the impact on him would be grossly disproportionate to the public interest served by registration in accordance with the Act. Accordingly, a Sex Offender Reporting Order will be issued for this offender in accordance with Form 52 of the Criminal Code. The offender will be subject to the Order for 20 years.

Prohibition

[62]        I am satisfied that an Order under s. 161(1)(a), (b) and (c) is appropriate for this offender and these offences. Accordingly, an Order shall issue prohibiting Mr. Smith from:

  • Attending a public park or public swimming area where persons under the age of sixteen years are present or can reasonably be expected to be present or at a daycare, school ground, playground or community centre;
  • Seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years; and
  • Using a computer system within the meaning of subsection 342.1(2) for the purpose of communicating with a person under the age of 16 years other than his own children.

[63]        This Order shall be in effect for five years, commencing on the date on which Mr. Smith is released from imprisonment for these offences.

Victim Surcharge

[64]        In accordance with s. 737(1) and (2)(b)(ii) of the Criminal Code, a victim surcharge of $3800 is imposed to be paid within 90 days of today’s date. The Clerk will provide the offender with a notice in accordance with s. 737(8) of the Criminal Code.

SUMMARY

[65]        Following convictions on 38 counts involving indecent assaults, sexual assaults and assaults against male children, the offender is sentenced to 11 years in jail, less credit for pre-sentence custody. The net result is a sentence of 9 years and 347 days.

[66]        Mr. Smith, comparing your sentence with those of many others involving sexual abuse of children in this province, you will see that I given you a sentence at the top of the range. In my view your actions rank with the worst of past offenders, for the many reasons. I congratulate you for admitting and acknowledging your wrongs, but overall, the compelling aggravating circumstances significantly outweigh the mitigating factors, and must result in a more severe sentence.

_____________________________

                                                                 William H. Goodridge

Justice


[1] The original Bills of Indictment included 71 counts. The Crown withdrew 30 of these counts and the offender entered a guilty plea on the remaining 41 counts. The Court entered convictions on 38 of these 41 counts. Convictions were not entered, and a stay was ordered, on Counts 10, 15 and 20. These three counts were a duplication of allegations covered already in Counts 6, 11 and 16.

[2] The two Mount Cashel Orphanage cases that Crown counsel referenced are R. v. English (1994), 122 Nfld. & P.E.I.R. 15, 24 W.C.B. (2d) 353 (Nfld. C.A.) and R. v. Lasik (1999) 180 Nfld. & P.E.I.R. 125, 43 W.C.B. (2d) 236 (Nfld. S.C.(T.D.). These two authorities remain highly relevant to my final disposition of sentence. Although physical force or violence was low for Mr. Smith, other aggravating factors were higher.

[3] There were several other authorities submitted by counsel which I reviewed but have not summarized here.

[4] The maximum penalty for indecent assault or sexual assault is ten years on each count; the maximum penalty for assault is five years on each count. There are no minimums.

11 Responses to Reasons for Judgment: Sentencing [George Ansel Smith]

  1. Sylvia says:

    A warning to all. This is a difficult read. I have started and stopped reading through the Agreed Statements of Facts twice. I’m taking another break right now before I finish. It’s just a hard hard read.

    Those poor boys. Those poor poor little boys. Four of them brothers. And him threatening to get one of the young boys if an older brother protested, so the boy, thinking he could spare his little brothers, conceded.

    And an unwitting mother sending her boy over to stay the night with Father George Smith during a storm because he, Smith, claimed he was afraid of the storm.

    How can he dare to consider himself fit to be a priest? Why is not begging to be defrocked?

    • Suzanne Herrick-Lee says:

      Can’t do it in one read either, actually makes me physically queasy, there really are no adequate words for the evil acts this man did to those innocent boys….

  2. PJ says:

    Rotten bastard…hopefully someone prison “gentlemen” will help him see the errors of his past. Sorry if I’m vindictive but this perverted collar does not deserve any mercy because he gave none…except for pleading guilty. Too little, too late. I commend the victims for their courage and resolve to see this to the bitter end. May you find some peace and solace in the sentence.

  3. PJ says:

    Forgot to add…I wonder if Frankie will defrock him?

  4. JG says:

    I read just enough to see where this is all heading…and it may just be candy for some twisted mind. Maybe you should have edited Sylvia.
    I will not read, I will not take part in this. It is just a whisker shy of viewing pictures of abused children.
    jg

    • Sylvia says:

      Evidence such as this that is in courts in all sex abuse trials JG. You will find similar in all court documents posted on the site.

      I post these because this is what these victims endure. This is why it takes years upon years for victims to find the courage to speak.This is what people don’t know about child sexual abuse. And, this is what may a Roman Catholic doesn’t know and doesn’t want to know about child sexual abuse.

      I have to leave it JG. People need to know what happens to those children. Yes, it is truly an unpleasant read, but my hope is that it will help those who think child sexual abuse is no big deal to understand the horror, fear and shame instilled in the child. Ditto that it will help those who want to insist that “Father” just made a little mistake. Ditto that it will help some to realize that this is the sort of evidence that judges routinely hear in courts in child sex abuse trials – and yet here we are rejoicing that the priest who committed these atrocities will serve 11 years rather than the standard two. Ditto that it will help all to understand why these men do not belong in the priesthood and why they are unfit to be priests.

  5. John says:

    OMG, it’s absolutely appalling on what this preist did to these young people. What a manipulative. WOLF in sheeps clothing. And here were are again, tax payers $$$$ being waisted again, on an individual such as smith. WOW. I bet the wolves in the clink will take care of him, especially if they find out the rotten things he did to kids .

  6. Mike Mc says:

    “In the agreed statement of facts, Smith revealed in 1992 he was treated for alcohol abuse and his sexual attraction to boys. No criminal charges were filed then, and Smith was back on the job a year later.”

    This paragraph is disturbing from the CBC article: http://www.cbc.ca/news/canada/newfoundland-labrador/story/2013/03/14/nl-george-smith-sentence-sexual-abuse-314.html?cmp=rss

    What is says to me is that in 1992 someone/s knew his evil intentions and problem…..but somehow he was reinstated into parish work again a year later. I wouldn’t be surprised if a bishop knew about this and thought “okay, he is cured now” and “forgiven for his sins”.

    Well, as we have seen many times before, this thinking of Bishops and Cardinals is TOTALLY WRONG. No excuse for this. Don’t you think? I mean c’mon, this was 1992. It wasn’t right in 1962 or even ’52, but somehow it happened more frequently back then. It was never right to simply assign a priest to another parish! All they did was perform these despicable acts again and wound more people.

    Can someone explain why Smith in 1992 was not taken to task then?

  7. Marion says:

    I live in this diocese. Just last night at the Bishop’s 3-day “mission” in Stephenville, I was wondering if Smith got charged or not or is he in hiding. One of the prayer petitions was for victims of sexual abuse.
    From this I assume he is in jail?
    I can’t read all all the statements, it stirs up so much anger and mistrust of all of them because one priest covers up the other. We have had so many pervert priests in this diocese, even a former bishop Lahey. In my mind, every collar has an invisible question mark in the centre of it.

    • Sylvia says:

      Yes Marion, Father George Smith was charged, he entered a guilty plea, and in March of last was sentenced to an almost unheard of (in Canada) 11 years in prison.

  8. Marion says:

    Thank you Sylvia, I had forgotten this email or somehow missed it today.
    I’d like to know what prison and where but I guess that is none of our business.
    Can these eleven years be shortened for “good behavior” or is that not an option here?

    Thank you for your diligence and constant work concerning this ugly chapter in R.C. History. When you started this blog, I’m sure you never imagined the depths of it, the work involved and the service you were providing.

    Blessings to you and your family.

Leave a Reply

Your email address will not be published. Required fields are marked *