R. v. Richard (sentencing)

R. v. Richard

Between

Her Majesty the Queen, and

Father Clair Richard, Defendant

[1992] N.S.J. No. 325

Action S.P.H. No. 00883

Nova Scotia Supreme Court ‑ Trial Division

Halifax,Nova Scotia

Goodfellow J.

July 20, 1992

(14 pp.)

Criminal law ‑‑ Sentencing ‑‑ Indecent assault of child.

The 56‑year‑old male defendant was convicted of four counts

of indecent assault on a young boy.  The defendant, a priest,

took advantage of his position of trust for his own sexual

gratification, and showed no remorse for the resulting long

term damage caused by the invasion of the sexual privacy and

integrity of the child.  Four years on each count to run

concurrently.  [Nova ScotiaLaw News, Vol. 18, No. 5.]

Richard J. MacKinnon, for the Plaintiff.

J. Michael MacDonald, for the Defendant.

GOODFELLOW J.:‑‑ The matter of sentencing of The Queen

and Father Richard.

Sentencing is a most unpleasant task and one of the most

difficult tasks confronting a trial judge.  In sentencing

Father Clair Richard, there are a number of factors to be

taken into account, including the following:

1.   AGE

     He is 56 years of age, unmarried.  His life has been his

church.

2.   FAMILY BACKGROUND

The Pre‑Sentence Report indicates that there were no

negative influences that caused Father Richard to act in an

antisocial behaviour.

3.   EDUCATION

Father Richard is a university graduate, having obtained

his Bachelor of Arts degree from St. Francis Xavier

University in Antigonish, followed by four years attendance

at the Seminary inOttawa, after which he was ordained.

4.   HEALTH

In 1977 Father Richard suffered a stroke for which he

was hospitalized followed by an apparent full recovery.

According to the Pre‑Sentence Report, in 1977 Father Richard

was sent to Southdown,Ontario, where he was treated for

alcoholism.  He is quoted as saying, “A problem I never had,

and could not understand why I was sent there, it should have

been for sexual deviation.”

5.   OFFENCE AND MAXIMUM PUNISHMENT PROVIDED

The maximum punishment provided by the Criminal Code

gives some indication of the seriousness of the crime from

the public’s perspective.

Section 156 of the Criminal Code in effect at the time

of these offenses dealt with indecent assault on a male and

provided that:

156  “Every male person who indecently assaults another

male person is guilty of an indictable offence and is

liable to imprisonment for ten years.”

6.   OFFENCE OF SEXUAL ASSAULT OR AS IT ONCE WAS ‑ INDECENT

ASSAULT

The offence of indecent assault, now sexual assault,

covers a wide spectrum of criminal conduct, from non

consensual touching by one adult to another adult, to sexual

intercourse in its various forms between non consensual

adults, to the grossest violation of sexual integrity, namely

that of an adult to a child, sometimes to one that is only a

baby.  In all cases there is a violation of ones ultimate

privacy and entitlement to personal sexual integrity.  The

degree of violation often accounts, in part, for the degree

of variance in the sentences that have been meted out by the

courts.

7.   RELATIONSHIP ‑ OFFENDER to VICTIM

In this case the offender is a priest and in my view

when the victim was a child of eleven or twelve years of age,

the sexual misconduct and abuse commenced.

In cases such as this the breach of trust is a major

factor to be considered in sentencing.  The victim looked up

to Father Richard as God.  The church, society and the

parents of children placed, or at least have in the past,

placed complete, total blind faith and trust in clergymen.

Those who have breached that trust by engaging in sexual

abuse of children must be prepared to pay the price.  It is

difficult to conceive of a more gross and fundamental breach

of faith and trust then the violation of the sexual integrity

of a child by a clergyman, entrusted to him in faith.

8.   OFFENSES THEMSELVES AND FACTUAL SITUATION

I will not review the factual situation in great detail.

Father Richard has been convicted of four separate charges of

sexual abuse of the same victim.  The offenses here were,

particularly in the initial occurrences, deliberate and

planned and they occurred over a period of time, 1977 to

January 2, 1983.

Father Richard knew the victim came from a large,

relatively poor, religious family and provided the victim

with gifts such as a ghetto blaster and money.  Such gifts

were not an act of Christian charity, but made to further and

facilitate the use of the victim for his own sexual

gratification.

He used and abused the power and authority inherent in

his position in the community, for his own selfish interests,

without concern or recognition of the terrible hurt and

scarring caused to the victim.  His initial resort to

wrestling with the victim was nothing but a cover for his

intended sexual relief and to provide an answer, should the

young victim dare voice objection or concern to anybody.

The wrestling proceeded and was tied in with the gifts

of money to the removal, on occasion, of clothes, physical

pressure of Father Richard against the young boy in such a

manner as to produce ejaculation of Father Richard over the

boy.  The misconduct progressed to masturbation and

endeavouring to have the young boy engage in, what, as I

recall, the young boy referred to on the stand during the

trial as, dirty talk.  The conduct of the young boy with

Father Richard became, as the boy testified, “learned

behaviour”.

9.   REMORSE OR PERHAPS MORE ACCURATELY STATED ‑ LACK OF

REMORSE IN THE ATTITUDE OF THE OFFENDER

In the course of the trial, evidence was tendered as to

the statements made by Father Richard after he had received a

reading of his rights and his entitlement to remain silent.

For example, during the drive from the manse toSydney,

Father Richard engaged in conversation with the R.C.M.P.

officers by asking a number of questions including, how does

one define sexual or indecent assault etc..  While Father

Richard did express some concern for his victim, his concern

was more for himself.  He volunteered to the police that this

was his first sexual experience and attempted to deflect the

blame on the lack of sexual knowledge given to him by his

parents etc..  He somehow wants the victim to bear a high

measure of fault.  Sexual abuse by Father Richard took place

at many different locations, such as in a field at Sight

Point and at St. Michael’s Glebe House in Margaree.  Father

Richard exhibits an almost complete lack of appreciation for

the harm and scarring he has caused this young man.

Father Richard, despite his intelligence and education,

exhibits little remorse and would, if he could, shift the

blame upon the victim.

Quite probably with the passage of time the young victim

sought financial and other gifts from the priest.  I do not

attach any blame to the child for developing this course of

conduct.  It is one that followed from the training and abuse

visited upon him by his priest.

10.  CHARACTER EVIDENCE

The character evidence of Mr. Macdougall, Mr. Day, and

the lady on behalf of Father Richard.  Their evidence is a

sharp reminder of the position of trust held by a clergyman.

A clergyman is looked to for guidance and help with all sorts

of problems in life, and it is clear that Father Richard

performed well some of his priestly duties.  Clergymen,

teachers, lawyers, parents and others who occupy positions of

trust cannot expect any mitigation by having fulfilled their

trust for a number of years.  That is what is expected of

them.  The fulfilment of trust over a long period of time

cannot mitigate the abdication of such trust.

The downfall of the offender does add another dimension

of tragedy which is already widespread, having affected the

victim the victims family, the church, society, and the

offenders family.

11.  FIRST OFFENDER

It is not unusual in this type of case for the offender

to be before the court without any previous convictions.

When a person operates from a position of high trust in a

relationship with a child, the manipulation of the child

usually induces fear and guilt in the child coupled with a

recognition in the past at least that the probability of

being believed if any complaint was made would be close to

zero.

12.  PRINCIPLES OF SENTENCING

These are well known and have been judicially stated

with frequency.  In cases of sexual assault where the victim

is a child, our Nova Scotia Court of Appeal has made a number

of pronouncements and I refer to but two of them:

Chief Justice Lorne Clarke ,Nova Scotia  Court of Appeal,

R. v Chisholm, 81 N.S.R. (2d) 421 at para. 11 & 12.

Paragraph 11

          “In reviewing the sentences imposed by the trial

judge, we are unable to agree, with respect that

they were fit and proper in the circumstance.  It

must now be evidence from what this court has said

in cases involving sexual assaults that general

deterrence must be an overriding consideration.”

Mr. Justice Macdonald wrote for this court in R. v

Murray(1986), 75 N.S.R. (2d) 361; 186 A.P.R. 361,

at p. 370:

“… This particular crime however appears to be

occurring with alarming frequency.  As has been

stated many times, courts have an obligation to the

public to impose sanctions upon sexual offenders

that will clearly indicate society’s repudiation

and indeed abhorrence of their conduct.”

Paragraph 12

Chief Justice Clarke said:

“General deterrence must be a primary consideration

in offenses of this kind where youthful victims are

involved.”

Chief Justice Clarke also spoke in the case of R.

v Wood, paragraphs 11 and 13, where he said:

“Under present circumstances courts have little

alternative but to use the sentencing process to

express society’s total abhorrence of acts like

those committed by this respondent.  If defenceless

children are to receive some measure of protection,

the message must be send out to those who are

inclined to take their advantage that such will not

be tolerated.”

In that case he indicated in the unanimous opinion of

the court, the trial judge failed to give adequate

consideration to the protection of the public, both from the

commission of this type of offence and from this offender and

as a result the sentence in that case was increased.  I do

not overlook the comments at page 6 of the Pre‑Sentence

Report that the Probation Officer stated:

“This offender does not appear to have had a recent

assessment regarding his behaviour and it is felt

that an extensive assessment, which would

illuminate this offenders psychological status and

the relationship between this psychological state

and the incident offence would be more helpful.  An

intense treatment program could then be set up to

deal with the problem areas discovered via the

assessment.”

This I trust will be given a priority for those who have

custodial care of Father Richard.

13.  VICTIM

I had the opportunity to observe this young man at the

trial and again at the sentencing hearing.  It cannot be said

with certainty that all his present problems arise from the

sexual abuse received from Father Richard.  There can be no

doubt, however, that the revolting misconduct of Father

Richard to this young man is at the very least a major

contributor to the sad state of his life.

I refer to the Psychological Services Reports of Dr.

Hanson, which are on the 7th of February, 1991, the 8th of

February, 1991 and the 13th of February, 1991.

On the 7th of February, 1991, Dr. Hansen wrote:

“Had initial crisis counselling session with victim

because of newly (first time) disclosed history of

victimization (sexual).  Victim appeared agitated,

confused, but relieved at last.  His parents are

being very supportive apparently, which was the

relief of one of his greatest lifelong fears.  He

may eventually get more out of participation in

substance abuse programs and I will see him

tomorrow.

On the 8th of February, 1991:

“Starting to deal with his feelings, long denied.

He is bright and moving through victimization, re

 loss of parent contact, loss of schooling, self

esteem, comfort in human relations, etc.. Very

quickly but understandingly we’ll deal with it

again and again.  He wants to pick up the pieces of

his life so that he can get advanced to a normal

life.  All of his nine siblings (no records,

nothing).  He is getting a lot of support from his

peers, some of them secretly disclose their own

victimization”.  He indicated that he would see him

the following week.

On the 13th of February:

“Mr. M. is very ambivalent today towards having

disclosed to authorities and he is struggling with,

protecting the reputation of the perpetrator as

though to ruin the perpetrator’s life would be far

worse that the (seemingly continuous) damages that

has been inflicted on his own.  His self esteem is

terribly low, to the point that I had to suggest

that his disclosure benefitted others, probably

younger victims of the same abuse.”

And there are additional comments the doctor has:

There is little doubt and I am satisfied the victim has

been badly scarred by Father Richard and this follows from

the invasion of this young man’s sexual integrity.

14.  CROWN COUNSEL

I weighed carefully the remarks of counsel for the

crown.

15.  DEFENSE COUNSEL

I weighed carefully the remarks of counsel for the

offender.

16.  PRE‑SENTENCE REPORT

I have considered also the remainder of the Pre‑Sentence

Report.  The offender takes no exception to the contents of

the Pre‑Sentence Report.

17.  CASES ‑ STARTING POINT

Other cases and the length of sentences previously

handed down.  I have reviewed all the sentencing cases

referred to me by counsel.  Determinations from other

decisions, including those from Appellate Courts are useful

and important guidelines.

In the final analysis, the sentence in each case

reflects to a considerable degree the circumstances of the

offence, the circumstances of the offender and the

circumstances of the victim, weighed in light of the well

known sentencing principles.

Sexual assault seems to break down into three categories

or levels for the purposes of sentencing.  The first is non‑

consensual touching, fondling, rubbing etc., where the sexual

misconduct falls short of masturbation, sexual intercourse,

oral or anal intercourse.

The next category is where the invasion of sexual

privacy and integrity reaches the stage of masturbation,

sexual intercourse, oral or anal intercourse.  It is usual at

this level that you find that such conduct is on a repetitive

basis by a person in trust involving a child.

The final category is where the conduct of the second

category exists and there are added dimensions such as

physical violence, threats of violence, the use of substance

abuses, etc., etc., the misconduct being the grossest kind

imaginable, indeed, this conduct is such that it is really

unimaginable to any reasonable person.

By attempting to categorize factual situations and I am

merely endeavouring to establish a starting point with the

full recognition that the categories are not water tight

compartments. The invasion of a persons home generally calls

for a starting point in sentencing of three years

incarceration.  The kind of offenses for which Father Richard

has been convicted tend to be far more reaching in the degree

of invasion of privacy and the consequences that follow.

This case falls within the second category in that we

are dealing with an offender who was in a position of the

highest trust and took advantage of that position for his own