R. v. Crampton (Supreme Court of Ontario, Court of Appeal)

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  R. v. Crampton  (Ont. C.A.) 

Between

 Her Majesty The Queen, Appellant, and

Dale Crampton, Respondent 

Ontario Judgments:  [1987] O.J. No. 666 

Supreme Court of Ontario – Court of Appeal

Toronto, Ontario

Morden, Thorson and Tarnopolsky JJ.A.

Heard:  June 25, 30, 1987

Judgment:  July 10, 1987

 

  Michael Bernstein, for the Appellant.

  Michael J. Neville, for the Respondent.

  The judgment of the Court was delivered by 

  MORDEN J.A. (orally):– The Attorney General for Ontario applies for leave to appeal and, if leave be granted, appeals against the disposition of the suspension of the passing of sentence and the releasing of the respondent upon conditions prescribed in a probation order for a term of 2 years upon his conviction following a plea of guilty to seven counts of indecent assault. 

  The following is an outline of the facts. During times material to the indictment the respondent was a parish priest, a trustee of the Carleton Roman Catholic School Board, an honorary Royal Canadian Mounted Police chaplain, and a marriage tribunal judge in the Roman Catholic Church. 

Count 1 

  This offence took place when the respondent was the parish priest at St. Philips Roman Catholic Church. The victim was an 11 year old altar boy. Sometime between January 1 and September of 1973 the victim was invited to the church rectory. While he was sitting on a couch with the respondent, the respondent moved his hand to the boy’s genital area and rubbed his penis atop his clothes for about half an hour. The respondent then directed him into a bedroom where the respondent reached into his underwear and fondled his penis and testicles until he fell asleep. 

  At the time of sentencing in 1986 the victim continued to think about what had happened. He had not attended church since the assault. 

Count 2 

  The 12 or 13 year old victim was also an altar boy at St. Philips Church. The offence took place in 1973. The respondent picked up the boy when he was hitch-hiking in Ottawa and took him to the church. The respondent then arranged with the boy’s foster mother that he would spend the night with the respondent at the rectory and then be returned home the next day. They retired to the same bed. The respondent fondled the boy’s penis and testicles for about five minutes. This was interrupted by a knock on the bedroom door. 

  The boy’s view of being an altar boy, which he had considered to be an honour and a privilege, “changed overnight … I believed at the time a priest was more than just a man. I thought, at the time, he was an extension of God or someone who carried on God’s feelings. From that time on I did not want to go to Church. I was embarrassed to be in the same room with our priest and one time friend …” 

Count 3 

  Between February of 1974 and November of 1977 the victim was between 11 and 13 years. On several occasions, at the rectory, the respondent touched the boy’s penis and buttocks. He also hugged and kissed him. 

  As a result of the assaults the boy found it impossible at times to concentrate on his school work. He felt himself to be somehow different. He never had a girl friend until he was seventeen because emotionally he was “really confused in respect of the sexual behaviour of men in general”. He continues to feel “a lot of anger”. He has seen psychiatrists in the past and generally cannot bring himself to tell them about the offences. Accordingly, they have had difficulty counselling him on “what was eating (him) inside”. 

Count 4 

  Sometime in the period December of 1978 and January of 1979 the respondent invited the 13 year old victim and two other youths to his cottage in the Township of West Carleton for a day of skidooing. He shared a bed with the boy at night. First, the respondent rubbed the boy’s back and then rolled him over onto it. He then attempted to remove the boy’s underwear, but was stopped by him. Shortly thereafter, he held the boy’s hand and then placed both of their hands inside the boy’s underwear and against his penis. After approximately 30 seconds the boy pulled his hand out and moved over to the far side of the bed and against a wall. On his return home the boy told his mother of the incident who in turn contacted the Bishop. 

  The boy said: 

After the incident I discontinued attending church and would feel extremely uneasy in a situation which involved myself and a man I didn’t know. I still feel that way in those kinds of situations. My school marks went down. I was  also nervous about going to school because he had made visits there recently. 

  The boy’s mother said:

   The incident which occurred with Dale Crampton and our son has had a serious and lasting effect not only on my son’s life but also on my own. When our son told us of the  incident we immediately arranged for a meeting with the  Bishop. . .

 Count 5 

  The victim, 9 or 10 years old at the time and an altar boy in 1979, was invited by the respondent to watch a movie in the church rectory. The respondent had the boy sit on his lap and rubbed his stomach and then reached inside his underwear and held his penis. This continued for several minutes before the boy could excuse himself to go to the washroom. He sat elsewhere when he returned. 

  At about the same period in 1979 a similar incident took place at the respondent’s cottage. The assault ended when the boy made an excuse to move away. 

  Sometime during the period April to June of 1980 the boy was invited again to the respondent’s cottage. It had two bedrooms. Two other boys, younger than the victim, were also invited. They shared one of the bedrooms. As a result the victim slept in the same bed as the respondent. He was awakened in the night to find his hand on the respondent’s penis under his underwear. His hand was held in place by the respondent. The boy left the bedroom and spent the rest of the night on the couch. 

  In the summer months of 1981 the respondent was asked to babysit the boy who was then 11 or 12. His parents were out of town. While they were in the study in the rectory the respondent reached into the boy’s pants and touched his penis for several minutes. The boy made an excuse and moved away. 

  Subsequently, the boy’s mother spoke with three different priests about the matter and later with the Bishop. The boy was shocked and felt unsure, confused and scared. He thought maybe he looked “weird” and that was why the respondent did what he did. His trust in the respondent was gone as well as his faith as a Roman Catholic. 

  His mother said: 

    … Dale Crampton was our parish priest at St. Maurice Church. He also held positions as trustee on the Separate School Board, R.C.M.P. chaplain and marriage tribunal judge within the Catholic Church. He was a very influential man in our society. He was a very popular priest and was very  highly respected. He was our shepherd, counsellor and confessor whose morals were above questioning, a priest called by God, a chosen one. 

                                    . . . . 

    We first met Dale when our son, . . . became an altar boy.   Dale singled him out as special. He told me our son was exactly the son that he would have wanted. He talked of his desire for priests to marry and implied loneliness. I felt sorry for him.

   At this time our son wanted to be a priest so I was delighted in the interest Dale showed for him. . . . 

  The mother has received psychological counselling to help her “come to terms with this nightmare that doesn’t seem to have any end …”. 

Count 6 

  The victim was 13 and an altar boy at the respondent’s church in August of 1981. During this month the victim was a guest at the respondent’s cottage. The respondent reached inside his bathing suit and fondled his penis for 2 or 3 minutes until the boy excused himself and left the room. On his return to the room the same thing happened and stopped when the boy excused himself and left the room again. On his second return to the room he and the respondent left to extinguish a fire on the beach outside. 

  As a result of the indecent assault the boy has suffered great embarrassment. He could not begin to tell the “pain and uneasiness this has brought me”. He was trying to deal with the matter with the aid of professional counselling. 

  His mother said: 

    With respect to the impact that this has had on [our son]  and the rest of our family, let me begin by stating that the whole thing is made worse by the violation of trust we placed in Dale Crampton, our parish priest. Our whole family has been raised in a Catholic atmosphere, Catholic schools included. We have never before had any reason not to put our trust in people in authority in the parishes we have lived in or in the schools we attended. 

    When we learned of what happened to our son, our trust in many Catholic institutions in the area were shaken. Needless to say this has affected our son and the rest of our family deeply. Our son is presently seeking professional counselling. The incidents of abuse and its consequent effects has affected his relationship with family members, friends, with his schooling and teachers all in a way he is not fully aware of yet. 

  The boy’s father spoke to like effect. 

Count 7 

  The victim was a 12 year old altar server at the respondent’s church. In October of 1982 he was invited to the rectory after a 7:00 p.m. Saturday Mass in order to watch hockey on television. When the boy was sitting on a foot-stool between the respondent’s legs at his request, the respondent cupped his hands inside his pants over the boy’s penis for 15 or 20 minutes before the boy suggested that he leave. 

  None of these offences involved threats by the respondent or physical injury to any of the boys. There has already been some reference to the psychological, emotional and spiritual damage in the recitation of the foregoing facts. On a general plane, the following portions of a letter from Dr. D. McLean, Assistant Director of the Family Court Clinic, was read into the record by counsel for the Crown: 

    This letter is to serve as confirmation that I have been  involved in a multi-disciplinary assessment of the victims  involved in the matter which is before Your Honour.                                     . . . .

 

    My assessment is as yet incomplete but at this time, it  does appear clear that the boys continue to manifest symptomatology related to the assaults as well as the recent resurfacing of this whole issue.

   The various offences were reported to the police between March and April of 1986. The respondent was arrested on June 14, 1986. 

  The respondent was 50 years old at the time of sentencing. He was born in Ottawa and raised by adoptive parents. He attended school in Ottawa. At 19 he entered a seminary and studied theology until he was about 30. He has been a parish priest his full adult life. As noted earlier, he has been a school board trustee, honorary chaplain with the R.C.M.P. and a marriage tribunal judge. 

  Character evidence was called on his behalf. One witness, a prominent lawyer, referred to the respondent as “a very down to earth and inspiring type of parish priest”. The respondent took an interest in the parish and “some of the particular problems with the parishioners …”. The other character witness was a civil engineer who testified with respect to the respondent’s leadership, administrative and counselling abilities and the high quality of his sermons. They were “current, they were topical, and they were meaningful”.

  The respondent has been diagnosed as suffering from homosexual paedophilia and alcoholism. On February 25, 1986 he was admitted to Guest House in Michigan. It is emphasized on his behalf that this was before any complaints were made to the police (albeit some time after complaints were made to representatives of the Church) and before any charges were laid. It is also emphasized that it was some four years after the last offence was committed. One of the reports from Guest House mentions that its “purpose is the treatment of Catholic priests and brothers suffering from the disease of alcoholism and concomitant problems”. A later report from Dr. John M.W. Bradford, Director, Forensic Service, Royal Ottawa Hospital, recounts that the respondent attended Guest House for the treatment of alcoholism. The respondent completed the Guest House programme on June 11, 1986 “having reaped [its] fullbenefit” according to a report from that facility. He has returned on several occasions as part of an “Aftercare Plan”. 

  It appears from the material that while the primary purpose of attending Guest House was for treatment for alcoholism the respondent also participated in individual and group sessions dealing with sexuality. The last report from Guest House before the sentencing (the report dated December 18, 1986) referred to “the sexual dysfunction which Father Dale had disclosed from the onset of treatment”. While this report says that “he participated in extensive individual psychotheraphy relative to the sexual problems which precipitated the current charges against him” it appears that he has also had extensive and intensive treatment from Dr. Bradford. The respondent was first examined by Dr. Bradford on August 5, 1986. 

  The last report from Guest House before the hearing of this appeal says that “with each succeeding visit Father Dale exhibits growth in all areas of his life”. Dr. Bradford in his last report notes that the respondent “has been a highly co-operative and motivated person, showing a considerable degree of remorse for his behaviour and has made great strides to bring his problems under control”. He said that both the homosexual paedophilia and the alcohol problem are, as a result of treatment, in a state of remission.

  Before the trial judge, counsel for the Crown, while stating that the case was “most difficult”, submitted that the appropriate sentence was a custodial term between 9 to 12 months. Counsel on behalf of the respondent submitted that the appropriate disposition was one that was treatment-oriented. 

  As indicated at the outset of these reasons, the trial judge followed the latter course. The period of probation was 2 years on the terms that the respondent continue the Aftercare Patient Treatment Programme from Guest House, that he avail himself, as required, of treatment by Dr. Bradford, and that he not be in the company of anyone 16 or under, unless supervised by an adult. 

  On this appeal counsel on behalf of the Crown submits that the trial judge erred in principle in failing to impose a custodial term in the range submitted at trial. On behalf of the respondent it is emphasized that sentencing is a flexible process and that the trial judge did not err in principle in opting for a disposition that emphasized the treatment of the respondent. 

  The following mitigating factors are submitted on behalf of the respondent in support of the trial judge’s disposition: paedophilia and alcoholism are diseases causing compulsive behaviour; the respondent sought treatment before the charges were laid; the respondent is highly motivated with respect to his treatment and it has been successful; the respondent indicated near the outset of the proceeding that he would plead guilty thereby saving the boys from having to testify; the assaults were relatively less serious than other kinds of indecent assault; and there were no threats or violence. Counsel for the respondent also emphasizes the substantial deterrent effect resulting from the respondent’s arrest, public trial and conviction, and the massive publicity relating to this case. 

  Sentencing is, indeed, a flexible process in the sense that in most cases there is not a single, correct, sentence and that an appellate court is not justified in interfering with a sentence simply because it would have imposed a different one. However, it is the duty of this court to “consider the fitness of the sentence” (Criminal Code, s. 614(1)) and, if clearly satisfied that the sentence imposed is unfit having regard to the facts of the case and the relevant factors and principles, to vary the sentence to what it considers to be a fit one.

  Having regard to the facts of this case, we think that the sentence that was imposed lay outside of what could be considered to be a fit range of sentence and that the trial judge, who clearly gave the matter his most anxious consideration, erred in failing to impose a custodial sentence. We think that the trial judge erred in failing to give proper weight to the following considerations: the extreme form of the breach of trust and, also, breach of authority, involved; the young ages and corresponding vulnerability of the victims at a very important time in their lives with respect to their sexual development; the impact of the offences on the victims and their families; and the fact that the offences took place over a substantial period of time – a ten year period. With respect to this last consideration this case is substantially different from one involving one or two isolated incidents. Even taking into account the effect of the mitigating factors to which reference has been made these considerations required the imposition of a custodial term. 

  The emphasis that is placed by the respondent on the fact that he sought treatment before the charges were laid must be considered together with the fact that the respondent, an intelligent man, must have known that what he was doing was wrong, morally and legally, and that, even though his conduct may have been the result of a compulsive illness, he continued in what he was doing for 10 years without seeking help. He waited until 1986. There is nothing said in the record explaining why he waited this long or why, in 1986, he sought help for the first time. 

  It would not be of any real assistance to canvass the case law in detail beyond mentioning one particular submission made to us in relation to it. The important judgment of this court in R. v. Henein (1980), 53 C.C.C. (2d) 257 was referred to the trial judge in argument but was not mentioned by him in his reasons for sentence. Nontheless, it is submitted on behalf of the respondent that this judgment supports the imposition of a treatment-oriented sentence in this case. Mr. Neville refers in particular to the observation “that on differing facts there is not one and cannot be one fixed appropriate sentence” (p. 262) and to the fact that in Henein the offender sought treatment only after he had been arrested and that his motivation respecting treatment was not as complete and positive as that of the respondent. Accepting that this distinction is favourable, to some extent, to the respondent, there is also the distinction that in Henein there was no relationship giving rise to a breach of trust whereas in this case there was a breach of trust in its most extreme form. Henein, it may be noted, contains the following statement of principle, repeated in other cases, that incarceration “properly express[es] the abhorrence by the public and repudiation by the Court of this conduct” (p. 268). 

  For the foregoing reasons leave to appeal is granted, the appeal is allowed, the suspending of the passing of sentence is set aside, and a sentence of imprisonment for 8 months is imposed. The probation order will stand, to commence following the respondent’s release from custody. 

MORDEN J.A.

THORSON J.A.

TARNOPOLSKY J.A.

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